Antitrust Law Daily Wrap Up, PRIVACY—E.D. Mo.: Class certification of physicians’ TCPA claims granted in facsimile advertising action, (Dec 13, 2013)

By Linda O’Brien, J.D., LL.M.

The federal district court in St. Louis has granted class certification under the Telephone Consumer Protection Act (TCPA) to a putative class of physician recipients of unsolicited facsimile advertisements from a marketing firm (St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc., December 11, 2013, Perry, C.). Thus, the plaintiffs’ proposed class sufficiently satisfied the prerequisites of Federal Rule of Civil Procedure 23(a) and (b).

Vein Centers for Excellence, Inc., a marketing firm that provides graphic design services to physicians, created form advertisements to be sent by facsimile and complied lists of thousands of fax telephone numbers of physicians and medical centers. Vein Centers engaged Westfax, a fax broadcaster, to send the advertisements to the numbers on the lists. In 2009, Westfax send over 35,000 transmissions on behalf of Vein Centers to physicians and medical centers. St. Louis Heart Center, Inc., a corporation owned by cardiology physician, Ronald Weiss, received an unsolicited faxed advertisement from Vein Centers. Subsequently, St. Louis Heart Center filed suit against Vein Centers for violations of the TCPA and moved for class certification.

Ascertainability. The TCPA generally prohibits the sending of unsolicited advertisements to telephone fax machines without the recipient’s consent. The court determined that the members of the putative class were ascertainable using objective criteria. St. Louis Heart Center produced evidence that contact information for most of the fax numbers on the lists could be identified and the lists themselves contained other contact information. Although approximately 20 percent of the intended recipients never received the faxes by Westfax, the statute made it unlawful to send an unsolicited faxed advertisement and proof of receipt was not a required element of a TCPA claim.

Typicality. The requirement of typically was met as the claims of the representative party, St. Louis Heart Center, arose from the single or standardized course of conduct by Vein Centers of sending virtually identical unsolicited faxed advertisements to thousands of numbers.

Adequacy of representation. The court also determined that St. Louis Heart Center established that, as a class representative, it had common interests with the members of the class and would prosecute the interests of the class through competent counsel. In rejecting Vein Centers’ argument that St. Louis Heart Center had no legal basis to represent persons or entities that were sent faxes on dates other the one date stated in its complaint, the court found the plaintiff produced evidence showing that Vein Centers engaged in the same course of conduct of faxing advertisements to the lists of faxed numbers.

Predominance. In this action, the common questions predominated over individual questions since the same evidence could suffice for each member of the class. There was evidence that Vein Centers obtained the fax numbers and created form advertisements that contained essentially identical opt-out language. Whether the language complied with the TCPA was a question that could be answered on a class-wide basis.

Superiority. Finally, the class action was a fair and efficient method of adjudicating the controversy. Due to the small statutory damages that were available to each individual, it was unlikely that class members would have an interest in individually prosecuting separate actions. Moreover, the potential for a large statutory damage award against the defendant did not prevent class certification.

The case is No. 4:12 CV 174 CDP.

Attorneys: Phillip A. Bock (Bock and Hatch, LLC) for St. Louis Heart Center, Inc. Brian R. Shank (Evans and Dixon) for Vein Centers for Excellence, Inc.

Companies: St. Louis Heart Center, Inc.; Vein Centers for Excellence, Inc.

Cases: Privacy MissouriNews