8th Cir. Reverses District Court’s Denial of Class Cert. in TCPA Class Action; Says Class Clearly Was Ascertainable

In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 2016 WL 1743037, at *3-4 (8th Cir. 2016), the Court of Appeals for the Eighth Circuit held that a TCPA blast-fax class action could proceed as a class act, reversing the district court’s denial of class certification on ascertainability grounds.

Sandusky’s class definition includes: “All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages regarding lead testing services by or on behalf of Medtox, and (3) which did not display a proper opt out notice.” Fax logs show the numbers that received faxes. Even so, the district court concluded that the class was not ascertainable because it would have to conduct individualized inquiries to determine which class members were injured under the TCPA. MedTox advocates a heightened ascertainability standard but asserts that, under any standard, the class is not ascertainable.  *4 The TCPA prohibits the “use [of] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” if “the recipient is within the United States.” 47 U.S.C. § 227(b)(1)(C). “A person or entity may … bring … (A) an action based on a violation of this subsection or the regulations prescribed … to enjoin such violation, (B) an action to recover for actual monetary loss … or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions.” § 227(b)(3). The plain language of the statute—allowing damages “for each such violation”—authorizes statutory damages for each sending of an unsolicited fax advertisement. See Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 914 (7th Cir.2011) (“The Act imposes, on anyone who sends an unsolicited fax advertisement, statutory damages of $500 per fax, which can be trebled if the court finds that the violation was willful or knowing”) (emphasis added).  MedTox urges that—despite the fax logs—there is no possible way to objectively ascertain the class in this case. Sandusky’s definition of the class includes all persons who “were sent” the faxes. MedTox believes that, by this definition, the class cannot be ascertained because multiple persons may claim injury for each fax: the subscriber to the fax number, the owner of the fax machine, (perhaps) a lessee of the fax machine, or any user disrupted by the fax. But cf. Chapman v. Wagener Equities, Inc., 747 F.3d 489, 492 (7th Cir.2014) (noting that the TCPA does not require ownership of the fax machine but adding “[t]here is no doubt that many of the current class members do own their fax machines.”).  The TCPA prohibits sending an unsolicited fax advertisement to a “recipient.” § 227(b)(1) (six references to “recipient”). The TCPA does mention the “telephone facsimile machine” but the “recipient” is not the machine, nor is it necessarily the person or entity that owns the machine. See American Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 544 (6th Cir.2014) (“Recovery under the TCPA’s private-right-of-action provision … is not premised on the ownership of a fax machine.”); Chapman, 747 F.3d at 491 (“But what the Act prohibits is faxing unsolicited fax advertisements ‘to a telephone facsimile machine.’ … There is no mention of ownership.”). Rather, the recipient is the person or entity that gets the fax. See § 227(b)(3) (authorizing a private right of action to a “person or entity” for actual monetary loss or statutory damages due to a violation).  The best objective indicator of the “recipient” of a fax is the person who subscribes to the fax number. See § 227(b)(1)(C)(ii)(I) (outlining an exception when the sender “obtained the number of the telephone facsimile machine through … voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement”) (emphasis added). True, the subscriber to the fax number may not be the recipient of the fax. However, fax logs showing the numbers that received each fax are objective criteria that make the recipient clearly ascertainable. See American Copper, 757 F.3d at 545 (finding that “the record in fact demonstrates that the fax numbers are objective data satisfying the ascertainability requirement”); Chapman, 747 F.3d at 492 (affirming class certification in a TCPA class action involving 10,145 persons and explaining that recipients “of faxes who don’t have rights under the [TCPA] just wouldn’t be entitled to share in the damages awarded to the class by a judgment or settlement”). Because the proposed class is clearly ascertainable, the district court abused its discretion in denying class certification.