November 28, 2021

Volume XI, Number 332

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Class Certified in Unsolicited Fax Advertisement Lawsuit

The U.S. District Court for the Western District of Michigan recently granted class certification in Van Sweden Jewelers, Inc. v. 101 VT, Inc., No. 1:10-cv-253 (Neff, J., presiding), a case arising under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227.  According to the Plaintiff, the Defendant violated the TCPA by sending unsolicited fax advertisements to nearly 5,000 individuals. The certification decision follows the Court's recent denial of the Defendants' motion for summary judgment (see earlier blog post).

The Court adopted the Plaintiff's proposed class definition—"a class of persons who were sent the advertisement by fax on May 8, 2007"—over the Defendants' objection that such a definition would include individuals who did not have a valid TCPA claim (i.e. those who consented to receiving the fax or had an existing business relationship with the Defendants).  Adopting the reasoning from another TCPA case, the Court explained that "delving into issues of consent in ascertaining class membership . . . would amount to impermissibly deciding the merits of the case at class certification."

With that class definition, the Court applied the familiar two-step process to determine whether the lawsuit could proceed as a class action.  First, the Court held that the proposed class met the "numerosity, commonality, typicality, and adequacy" requirements to proceed as a class action.  The Court held that:  (1) joinder of the alleged 4,989 class members would not be practicable; (2) the proposed claims derive from a common course of conduct and involve the same facts and legal issues; (3) the claims and defenses are typical of the claims and defenses of the class; and (4) the plaintiff's counsel is positioned to vigorously prosecute the interests of the class.  Second, the Court agreed that resolving the TCPA claims on a class-wide basis (as opposed to through thousands of individual lawsuits) would be "an efficient use of judicial resources and represents the superior method of handling the claims."

© 2021 Varnum LLPNational Law Review, Volume II, Number 273
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About this Author

Our commercial and corporate attorneys work daily on a variety of contract matters, including supplier contracts, licensing, procurement, sales contracts and contract administration.

Varnum attorneys serve our business clients’ needs in complex transactions governed by the Uniform Commercial Code, which includes Article 2 (Sales of Goods) and Article 9 (Secured Transactions). We have expertise in all facets of commercial sales, including drafting of purchase orders, quotes, and acknowledgments to protect the rights of buyers and sellers...

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