Two Courts Decline to Certify TCPA-Fax Class Actions Due to Individualized Questions related to Whether the Faxes Were “Unsolicited”

In Bridging Communities, Inc. v. Top Flite Financial, Inc., 2013 WL 2417939 (E.D.Mich. 2013), the Court held that a TCPA Fax case could not be certified due to individual questions related whether the faxes were ‘unsolicited’ under the TCPA.

Fatal to Plaintiff’s Motion is the fact that the Court fails to find that common issues predominate over the individualized issues under Rule 23(b)(3). The factual core of this case is not whether Defendant sent facsimile transmissions but, rather, whether each of the individual class members solicited the facsimiles. In other words, because the claim of each class member is inherently individualized, determining liability would require investigation of the factual circumstances of each person or business that received a facsimile transmission from Defendant. See Forman v. Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D.Pa.1995) (“The transmissions to each plaintiff would necessarily occur in different places, at different times and under differing circumstances. Given the individual proof necessary to establish liability, the commonality requirement cannot be met.”). Thus, the Court is not persuaded that the instant issues are subject to generalized proof, see Beattie, 511 F.3d at 564, and will exercise its discretion to deny Plaintiff’s re-quest for class certification, see Sterling, 855 F.2d at 1197.

The North Carolina Court of Appeal reached the same conclusion in Blitz v. Agean, Inc., — S.E.2d —-, 2013 WL 2395970 (N.C.App. 2013).

This Court rejected a bright line rule regarding class certification because class certification in TCPA cases depends on the facts of each case.   Id. at 305, 677 S.E.2d at 7. The Court adopted the reasoning of other courts and found that the only statutory defense to a cause of action based on an unsolicited fax advertisement was a defendant’s “prior express invitation or permission[,]” which could not be inferred from an established business relationship. Id. at 304–05, 677 S.E.2d at 6. In addition, the Court found that in class certification of TCPA cases, a North Carolina Court should determine whether the plaintiff proceeded with “a theory of generalized proof of invitation or permission” as articulated in Gene & Gene, LLC v. BioPay, LLC, 541 F.3d 318 (5th Cir.2008) and Kavu, Inc. v. Omnipak Corp., 246 F.R.D. 642 (W.D.Wash.2007). Agean I, 197 N.C.App. at 310–11, 677 S.E.2d at 11. ¶ . . . ¶ Accordingly, given the evidence, we agree with the trial court’s findings and conclusions that the “individualized issues concerning whether sent fax advertisements were “unsolicited” predominate[d] over issues of law and fact common to the proposed class members.” The trial court’s findings of fact are supported by competent evidence. Plaintiff failed to define a class that was subject to generalized proof and therefore, he failed to show that the trial court abused its discretion in denying its motion for class certification. ¶ V. Leverage in Settlement Negotiations.  Plaintiff also argues that the trial court abused its discretion by refusing to certify the class because of the conclusion that class certification “would principally serve to provide plaintiff with inappropriate leverage in settlement negotiations.” The trial court also concluded that “even if the elements [establishing a class] were met,” class certification “would be unjust on equitable grounds.” Since we have concluded that the trial court correctly denied class certification, there is no need to determine whether or not it would be unjust on equitable grounds.