The Northern District of Illinois denied certification of a class in a claim brought pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. Sec. 227. Plaintiff alleged that defendant violated the TCPA by sending it unsolicited faxes promoting defendant’s catering services. In discovery, plaintiff obtained a fax log demonstrating that Defendant sent 3,000 faxes to 106 unique fax numbers. Plaintiff also obtained a template fax that defendant allegedly used to send these faxes. Plaintiff sought to certify a class of plaintiffs whose numbers appeared on the fax log asserting that defendant used the template to send them junk fax advertisements like the ones plaintiff had received.
The court began its certification discussion by itemizing the elements of Rule 23(a) and (b)(3) plaintiff must prove. The court also cited Wal-Mart Stores, Inc. v. Dukes for the implicit Rule 23 requirements that a class be sufficiently definite and ascertainable. The court further noted that its analysis of these requirements must be “rigorous” particularly where certification could expose a defendant to a very large potential liability, as in a TCPA case where damages are not capped.
The court then observed that plaintiff’s fax number did not appear on defendant’s fax log. Moreover, the content of the faxes sent to plaintiff, which promoted defendant’s catering services, was different than the content of the template fax sent to the 106 recipients, which did not. Although factual distinctions alone will not destroy typicality, the Court noted that the factual distinctions between plaintiff’s claim and those of the putative class could not be overlooked. The Court rejected plaintiff’s argument that the faxes sent to it and the putative class members were “the same practice or course of conduct” and concluded that plaintiff’s claim did not meet the numerosity, typicality, or adequacy requirements of Rule 23.
Even if the plaintiff’s claim was typical of those of the putative class, the Court found that plaintiff failed to define an ascertainable class. The fax log did not include plaintiff’s fax number and thus did not identify other recipients whose number also did not appear on the log. Therefore, the Court found that plaintiff failed to identify any other absent recipients who plaintiff sought to make members of the class.
The court also denied as moot plaintiff’s motion for leave to amend its complaint to redefine the class to include all persons who received a fax sent by or on behalf of the defendant promoting defendant’s goods or services. The court reasoned that plaintiff failed to demonstrate the redefined putative class and subclass received faxes sent on behalf of the defendant or promoted its goods or services. Furthermore, because plaintiff’s own claim and proof still conflicted with those of the putative redefined class, the Court found that plaintiff failed to meet the requirements of Rule 23 under either definition.
Rosen Family Chiropractic, S.C. v. Chi-Town Pizza On Division Street, Inc. (N.D. Illinois Feb 13, 2015).
