Antitrust Law Daily Wrap Up, ADVERTISING—WDMo: Class Certification of Fax Ad Recipients Denied , (Oct 17, 2012)

By Jody Coultas, J.D.

A Missouri law firm was denied certification of a Telephone Consumer Protection Act (TCPA) class action claim against a company that allegedly sent unsolicited facsimile advertisements to consumers by the federal district court Kansas City, Missouri (Evans & Green, LLP v. That’s Great News, LLC, October 15, 2012, Smith, O.). Numerous individual issues predominated the firm’s proposed class of all persons to whom the company or company’s agents sent one or more facsimiles promoting the company’s promotional products or services during the month of March 2010.

The TCPA prohibits the use of any facsimile machine to send unsolicited advertisements unless the recipient has an established business relationship with the sender.

Although the firm’s class met the certification requirements of Federal Rules of Civil Procedure 23(a), the court denied certification of the class because the firm failed to establish predominance. The class was sufficiently numerous, common questions of law and fact were shared by class members, the claims of the firm were typical of the class, and the firm was an adequate representative. However, common issues did not predominate over individual factual issues, including whether each facsimile was solicited or unsolicited and whether each class member had an established business relationship with the company. The court also found that a class action was not the superior method of adjudicating the controversy because effective notice could not be provided and it was not desirable to concentrate the litigation in the forum.

The case is No. 11-3340-CV-S-ODS.

Michael T. Miller (Wood Law Firm, LLC) for Evans & Green, LLP.

Cases: Advertising ConsumerProtection MissouriNews