The United States District Court for the Eastern District of Missouri recently granted class certification of an opt-out only junk fax class in St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc., No. 12-cv-174 (E.D. Mo. Dec. 12, 2013). In so doing, the Court soundly rejected several common defenses asserted in TCPA class actions, making such cases even more onerous to defend.
In 2008 and 2009, Vein Centers for Excellence, Inc. (“Vein Centers”) sent over 35,000 fax advertisements to doctors and medical centers, whose fax numbers it had obtained from various third-parties. Each of the faxes had an opt-out notice; however, the notice did not contain all of the detailed language set forth in the relevant Code of Federal Regulations.
On September 15, 2009, Plaintiff St. Louis Heart Center, Inc. (“Heart Center”), a serial TCPA Plaintiff brought a putative class action against Vein Centers on behalf of all persons or entities who received a fax from Vein Centers with a non-compliant opt-out notice, regardless of whether the fax was “unsolicited” within the meaning of the TCPA. Slip Op. at 8.
Vein Centers made several arguments in opposition to Heart Center’s motion for class certification, raising a number of commonly asserted defenses including: (1) Congress did not envision the TCPA to be used as a class action vehicle; (2) lack of ascertainability; (3) lack of typicality; (4) class scope should be limited to the single date of faxing; (5) variance in state laws; and (6) unconstitutionality of a class damages award. The Court, in turn, rejected each argument.
No Clear Expression of Congressional Intent to Exempt Class Actions
First, the Court rejected Defendant’s argument that the TCPA does not permit class actions, ruling that there was no “clear expression of congressional intent to exempt class actions” from the statutory scheme. Slip Op. at 6-7.
Neither Different Transmissions Nor Proof of Receipt Are Necessary for Class-Wide Proof
Second, Defendant argued that the class was not ascertainable because (a) there was insufficient information from which Plaintiff could match the fax numbers at issue to names of persons or entities, as the fax list used had only partial identifying information and was over six years old; (b) the fax definition included persons who may have been sent, but never actually received the faxes at issue; and (c) some of the class members may have received faxes in electronic, not paper, form. Id. at 9-13. The Court rejected each of these arguments. It found that Plaintiff had identified a technology officer who testified via affidavit that he could match the fax numbers to names of persons or entities, making identification a non-issue. Id. at 9-10. Further, the Court found that whether a class member had actually received a fax was irrelevant because the TCPA measures violations by faxes sent, not received. Id. at 11-13. Lastly, the Court ruled that faxes received in electronic form still constituted a violation of the TCPA because they burden the class members’ computer networks, even if they do not waste paper and ink. Id. at 14-15.
Failure of Absolute Compliance with Opt-Out Gives Rise to Private Right of Action
Third, Defendant argued that Plaintiff’s claim was not typical of the class because it received a fax with an opt-out notice, even if that notice did not comply with all of the language set forth in the federal regulations. Id. at 17-19. The Court rejected this argument, noting that a private right of action exists when either the statutory language or the implementing regulations, which include the detailed opt-out language requirements, are violated. Id. at 18.
Receipt of One Fax Is Sufficient to Represent Larger Class Where Defendant Engaged in Same Course of Conduct
Fourth, Defendant argued that Plaintiff was not an adequate class representative because it had only received one fax – on September 15, 2009 – and therefore had no legal basis to represent individuals who had received faxes on other dates. Id. at 21-22. Because Heart Centers had produced evidence showing that Vein Centers engaged in the same course of conduct, e.g., using the same fax list, with regard to each of the dates on which faxes were sent within the class period, the Court ruled that Plaintiff could adequately represent the entire class. Id. at 22.
Mims Controls: Federal Procedural Law Trumps State Laws Prohibiting Class Actions
Fifth, Defendant argued that the predominance requirement could not be met because the class was nationwide in scope, and several states have laws which do not permit class actions. Id. at 23-24. Citing the Supreme Court’s recent decisions in Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012) and Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010), the Court ruled that the class mechanism provided in Federal Rule of Civil Procedure 23 was available even where state procedural rules barred class-wide relief. Id. at 25.
Where Class Certification Is Otherwise Appropriate, Large Damages Do Not Warrant Denial on Constitutionality Grounds
Lastly, Plaintiff argued that resolution on a class basis was not superior to individual suits because if a class were to be certified, it faced unconstitutionally excessive damages. Id. at 26-27. The Court found that damages under the TCPA are not punitive and, therefore, where class certification is otherwise appropriate, the potential of large damages should not prevent it. Id. at 27. Accordingly, the Court certified the class.
Vein Centers is exemplary not in the novelty of the arguments made by Defendant against class certification but in the Court’s willingness to summarily dispose of each of them. It is yet another example of the ease with which opt-out only classes – classes which do not address issues of consent, which are often individualized – are certified. It also serves as a reminder to businesses engaged in fax advertising of the risks posed by purchasing contact information from third-parties.