In St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc., 2017 WL 2861878 (E.D. Mo. 2017), Judge Perry found ascertainability problems in certifying a TCPA blast-fax class.
As discussed in my prior Memorandum and Order of February 7, 2017, the Eighth Circuit addressed a class action similar to this one in Sandusky, which also involved violations of the TCPA by the sending of unsolicited facsimile advertisements. 821 F.3d 992 (8th Cir. 2016). The Court of Appeals found a class definition – like the one here which includes all class members who were “sent” a junk fax – to be ascertainable. The court said that the TCPA’s “recipient” of the fax, or the person or entity with an authorized private right of action, is “the person or entity that gets the fax.” 821 F.3d at 997 (citing 47 U.S.C. § 227(b)(1), (b)(3)). Ultimately, the court held that the fax logs in the record, which showed the numbers that received the faxes, are objective criteria that make the recipient clearly ascertainable. Id. Following the release of Sandusky, and since my denial of summary judgment for Heart Center, the Eighth Circuit has issued an additional clarifying opinion on class ascertainability: McKeage v. TMBC, LLC, 847 F.3d 992 (8th Cir. 2017). In McKeage, boat buyers brought a class action suit alleging unauthorized practice of law against defendant boat seller who charged a document fee when selling boats and trailers under form contracts governed by Missouri law. After defendant filed a motion to decertify the nationwide class, the district court required class counsel “to hire reviewers to manually inspect each of [defendant’s] customer files in order to determine which contracts contained a Missouri choice-of-law provision, the inclusion of which formed the basis for the nationwide class.” 847 F.3d at 997. After the district court granted summary judgment in favor of the class and awarded damages, the defendant appealed. Defendant argued that the district court erred in certifying a class because such certification required an individualized inquiry related to both the identification of the class members and the evidence necessary to establish liability once a class had been identified. Id. at 998. On appeal, the Eighth Circuit reiterated that “[a] class may be ascertainable when its members may be identified by reference to objective criteria,” and provided the fax logs in Sandusky as an example of such objective criteria. McKeage, 847 F.3d at 998-99 (citing Sandusky, 821 F.3d at 997-98). The appellate court found the intensive customer file-by-file review process used in McKeage to be valid objective criteria for class identification, and affirmed the class certification. Id. at 999-1000. “[A] dispute regarding the method for identifying class members calls for an independent discussion of whether a class is ascertainable.” McKeage, 847 F.3d at 998. Although the class definition here closely resembles the one approved by the Eighth Circuit in Sandusky, there is no “objective criteria,” like fax logs, available to clearly ascertain the class members. Id. Although Heart Center provides evidence of the number of successfully transmitted junk faxes by Vein Centers, there is no evidence of exactly which fax numbers were successfully sent a junk fax. Without fax logs of successful transmissions or other such evidence, the only way potential class members could prove they were “sent” junk faxes, as required by the class definition, is through individual testimony. Heart Center argues that potential class members should be able to identify themselves in response to notice after this case is resolved; however, Heart Center fails to provide any theory of generalized proof of liability that could be presented to the court to make a reasonable determination of class membership. Heart Center mentions, but provides no details on, the use of “a claim forms process or affidavits.” ECF No. 105 at 11. But here reliance on claims forms or affidavits is especially troublesome because of the nature of the proof required. Whether someone can actually remember receiving a specific junk fax sent many years earlier raises credibility issues best determined by a trier of fact after testimony subject to cross-examination. This is an appropriate issue for a trial, but not for a claim form or affidavit. See also Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc. (ASD Specialty), No. 3:13 CV 2085, 2016 WL 75535, at *3 (N.D. Ohio Jan. 7, 2016) (where fax logs unavailable and no theory of generalized proof has been proposed, the district court found it suspect in nature to rely on affidavits from all potential class members certifying receipt of a fax received many years prior). Without any generalized classwide proof of liability, similar to the fax logs that showed receipt of faxes in the Eighth Circuit’s Sandusky case, the court would be required to conduct “mini-hearing[s] on the merits of each case” in order to identify class members. Leyse v. Lifetime Entm’t Servs., LLC, Nos. 16-1133-cv, 16-1425-cv, 2017 WL 659894, at *2 (2d Cir. Feb. 15, 2017) (quoting Brecher v. Republic of Argentina, 806 F.3d 22, 25 (2d Cir. 2015)) (affirming denial of class certification based on the inability to ascertain the class where no list of class members existed). Individual inquiries into the validity of each potential class member’s claim to determine if they were “sent” a Vein Centers’ junk fax during the period at issue is something that could be accomplished at individual trials, but it there is no objective way to determine it on a class-wide basis. Based on the unique facts of this case, identifying class members through some objective basis is not possible and therefore the class is unascertainable.