Antitrust Law Daily Wrap Up, PRIVACY—8th Cir.: Denial of class certification in unsolicited fax case reversed and remanded, (May 4, 2016)

By Michael Menzhuber, J.D., LL.M.

Denial of class certification of a chiropractic center’s claim that a toxicology lab sent an unsolicited fax in violation of the Telephone Consumer Protection Act (TCPA) was reversed and remanded by the U.S. Court of Appeals in St. Louis. The appellate court also vacated the district court’s judgment for the toxicology lab (Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., May 3, 2016, Benton, D.).

Medtox Laboratories, Inc. created a contact list from a health insurance company directory for the purpose of transmitting a single-page fax regarding its lead testing capabilities. Although Sandusky Wellness Center, LLC was not on the contact list, one of its part-time chiropractic practitioners gave the Sandusky fax number to the health insurance company which, in turn, gave it to Medtox. As a result, Medtox sent a fax to Sandusky’s fax number.

After filing an action against Medtox which alleged a violation of the TCPA, Sandusky moved to certify as a TCPA class of all persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages regarding lead testing services by or on behalf of Medtox, and (3) which did not display a proper opt out notice.

The district court denied class certification on the basis that the class was not ascertainable. Sandusky appealed the denial of class certification, the order dismissing the case as moot, and the final judgment for Medtox.

Although fax logs showed the numbers that received the faxes, the district court concluded that the class was not ascertainable because it would have to conduct individualized inquiries to determine which class members were injured under the TCPA. The appellate court disagreed. After noting that the TCPA prohibits sending an unsolicited fax advertisement to a “recipient” and the best indicator of a “recipient” of a fax is the person who subscribed to the fax number, it determined that fax logs showing the numbers that received each fax were objective criteria that made the recipient clearly ascertainable, even in cases where the subscriber to the fax number might not be the recipient.

The district court also ruled that, due to the individual issues presented, Sandusky could not meet the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and 23(b)(3). Again, the appellate court disagreed. It found that: (1) a common contention, capable of classwide resolution, was whether class members received an unsolicited fax advertisement violating the TCPA; and (2) questions of law (such as whether the fax violated the TCPA) predominated, as did questions of fact (such as whether a class member received an unsolicited fax).

The case is No. 15-1317.

Attorneys: Garrett D. Blanchfield, Jr. (Reinhardt & Wendorf) and Glenn L. Hara (Anderson & Wanca) for Sandusky Wellness Center, LLC. Geoffrey W. Castello, III (Kelley Drye & Warren LLP) and Jessica Lee Prom Klander (Bassford & Remele) for Medtox Scientific, Inc. and Medtox Laboratories, Inc.

Companies: Sandusky Wellness Center, LLC; Medtox Scientific, Inc.; Medtox Laboratories, Inc.

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