Antitrust Law Daily Wrap Up, PRIVACY—SDFla: TCPA Class Certification Denied Due to Failure to Eliminate from Class Recipients That May Have Given Consent, (May 23, 2013)

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

The federal district court in Miami has declined to grant certification under the Telephone Consumer Protection Act (TCPA) to a class of recipients of allegedly unsolicited facsimile advertising because the list of fax numbers to which the advertisements were sent did not distinguish those recipients that may have given consent to sending the advertisements or may have had an “established business relationship” with the sender (A Aventura Chiropractic Center, Inc. v. Med Waste Management LLC, May 21, 2013, Altonaga, C.).

According the complaint, Opal Management LLC and Med Waste Management LLC, both owned by Avrohom Prager (collectively, “the defendants”), purchased a list of 40,000 fax numbers of medical businesses in certain states. The defendants then merged that list with a list of 20,000 numbers they already possessed, and unsolicited advertising faxes without an opt-out notice were sent to the numbers. In deposition testimony, Prager and the owner of the facsimile advertising company from which the list was obtained disputed whether the defendants or the advertising company had sent the faxes on Med Waste’s behalf.

A Aventura Chiropractic Center, Inc. (Aventura) filed a class action lawsuit against the defendants, asserting that the sending of the advertising faxes had violated the TCPA. In the present decision, the court addressed Aventura’s motion for class certification of a class of “all persons who were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services on behalf of Defendants; from whom Defendants did not first obtain express permission or invitation to send the faxes; with whom Defendants did not have an established business relationship; and which faxes did not display a proper opt-out notice.” The class was defined as “All persons who were sent one or more facsimiles in May 2010 from ‘Med Waste Management’ with the phone number ‘888-431-6386’ and offering ‘Guaranteed 20% Savings.’”

The court first rejected the defendants’ argument that the class was too broad by covering the entire month of May rather than the two specific days on which Aventura alleged it received the Med Waste advertisements. The court observed that testimony from the owner of the advertising company had revealed that sending the 60,000 faxes would take around 15 days, and thus “a definition that isolates two particular days of the month” would be “inconsistent with the evidence gathered in the case.” The May 2010 definition would provide “an ‘objective standard’ by which membership in the class can be ascertained.”

However, the court concluded that the proposed class definition failed because it did not “distinguish between recipients who may have consented to the advertisements and those who did not.” The court reviewed other cases considering the issue of consent as a bar to class certification, and determined that “the unique facts of each case will guide the determination of whether individualized questions regarding consent will make class certification inappropriate.”

Although in some prior cases the consent issue did not prevent certification “because the identities of the fax recipients were purchased from a third party,” here the defendants had “presented evidence that many customers or potential customers asked for information about Med Waste, and some of those may be among the 40,000 numbers purchased, which consist of numbers for companies likely to use Med Waste’s services.”

Of even more concern to the court was the fact that the proposed class would include the 20,000 other owners of numbers from the list the defendants already possessed. The record was unclear regarding the source of those numbers, and the defendants had sent the Med Waste advertisement to “Med Waste’s business associates, family, friends, and [the advertising company], and disseminated the advertisements by facsimile to customers and potential customers who requested information about Med Waste’s services.” Aventura did not propose a way to narrow the list to the 40,000 obtained from the advertising company “and cross-check that Med Waste customers or potential customers (of whom there is no written list) do not appear on that narrowed list.”

Moreover, the TCPA provides a safe harbor to senders of advertisements that have an “established business relationship” with the recipients, and “whether Defendants satisfy the EBR Safe Harbor as to each of the potential class members is an individualized question precluding class treatment.”

Therefore, determining the boundaries of the class from the list of fax numbers provided by Aventura, and verifying whether any of the owners of those numbers consented to the faxes or fell within the TCPA safe harbor, would present an “insurmountable problem,” according to the court. As a result, the court denied certification to the proposed class.

The case is No. 12-21695-CIV-ALTONAGA/Simonton.

Attorneys: Gregory Scott Weiss (Leopold Law) for A Aventura Chiropractic Center, Inc. Kenneth J. Rubinstein (Haynes and Boone, LLP) for Med Waste Management LLC.

Companies: A Aventura Chiropractic Center, Inc.; Med Waste Management LLC; Opal Management LLC

Cases: Privacy FloridaNews