Defendants BMW and Creditsmarts were parties to a marketing agreement through which BMW offered its direct automotive “up2drive” loans to borrowers at participating independent car dealers through Creditsmarts’ internet-based business-to-business lending platform. Creditsmarts used a third party, Westfax, to fax over 20,000 advertisements to independent car dealers during a 30-day period. Plaintiff City Select Auto Sales received one of these faxes and brought a putative class action on behalf of other car dealers who received faxes advertising the up2drive BMW service. Like plaintiff, these dealerships had no preexisting business relationships with Creditsmarts or BMW, allegedly rendering the faxes in violation of the Telephone Consumer Protection Act (TCPA).

The District Court for the District of New Jersey denied class certification on the sole ground that there was no reliable and administratively feasible means to determine whether putative class members fell within the class definition, as required to meet the ascertainability requirement. On appeal, the Third Circuit vacated and remanded on two grounds.

First, the court found that its ascertainability precedents “do not categorically preclude affidavits from potential class members, in combination with the Creditsmarts database, from satisfying the ascertainability standard.” In so ruling, the court reasoned that because the Creditsmarts database defined a limited set of potential claimants, the only factual inquiry remaining was whether a particular dealership in the database received the BMW fax. The court found that answering this question through affidavits or other available records would “not necessarily require individualized fact-finding that would be ‘administratively infeasible’ or ‘a violation of Defendants’ due process rights.’”

Second, the court took issue with the fact that the Creditsmarts database was never produced at the district court level — finding that plaintiff needed the database to demonstrate whether a reliable, administratively feasible method of identifying class members existed. The court remanded to allow production of the database and give the district court the opportunity to consider whether the database, coupled with attestations, satisfies the ascertainability standard.

City Select Auto Sales Inc. v. BMW Bank of N. Am. Inc., No. 15-3931 (3d Cir. Aug. 16, 2017).