Antitrust Law Daily Wrap Up, PRIVACY—EDMich: Class Certification Denied in Two Putative TCPA Facsimile Advertising Class Actions, (Apr 29, 2013)

By Tobias J. Gillett, J.D., LL.M.

Four days after releasing its decision in a Telephone Consumer Protection Act (TCPA) putative class action denying certification to the class in that case, the federal district court in Detroit has issued decisions denying class certification in two companion cases asserting nearly identical claims (Compressor Engineering Corp. v. Manufacturers Financial Corp., et al., April 26, 2013, Cox, S.; APB Associates, Inc. v. Bronco’s Saloon, Inc., et al., April 26, 2013, Cox, S.).

In its previous decision (Machesney v. Lar-Bev of Howell, Inc., et al., April 22, 2013, Cox, S.), the court had found that ethical concerns about a plaintiff’s law firm that allegedly engaged in certain misconduct in pursuing TCPA class actions, including the ones before the court, did not preclude certification of the proposed classes. The court pointed out that it could appoint an attorney that had not participated in the alleged misconduct as lead plaintiff’s counsel. However, the court denied certification because the classes were not ascertainable. Moreover, the court would be required to make individualized determinations as to each prospective class member’s contact information, as to their ownership of recipient fax machines, and as to whether the recipients had given permission to send the advertising or had preexisting business relationships with the senders.

The court also questioned whether the named representatives could fairly and adequately represent the classes, because they had signed retainer agreements agreeing not to oppose an attorney fee award of one-third of any recovery, agreements the court found "troubling" given the amount of work actually performed by the counsel in each case.

The Machesney decision addressed the sending of allegedly unsolicited facsimile advertising by five corporate entities that either owned or oversaw Kentucky Fried Chicken franchises, while the Compressor Engineering and APB Associates decisions addressed the sending of allegedly unsolicited facsimile advertising by co-owned mortgage and marketing companies and by co-owned tavern and gentleman’s club establishments respectively. Nonetheless, the court applied the same analysis to deny certification to the classes in those cases.

The cases are Nos. 09-14444 and 09-14959.

Attorneys: Brian J. Wanca (Anderson & Wanca) for APB Associates, Inc. and Compressor Engineering Corp. Jason R. Mathers (Harvey Kruse) for Bronco's Saloon, Inc. Wayne A. Geik (Kallas & Henk) for T & R Enterprises, Inc. Dane A. Lupo (Lupo and Koczkur) for Manufacturers Financial Corp.

Companies: APB Associates, Inc.; Bronco’s Saloon, Inc.; Compressor Engineering Corp.; Manufacturers Financial Corp.

Cases: Privacy ConsumerProtection MichiganNews