Failure to Identify Fax Recipients Shows Putative Class Is Not Ascertainable
A court in the Northern District of Illinois recently denied class certification in a “fax blast” case because the plaintiff failed to meet its burden of proof in showing that the putative class was ascertainable where there was no evidence identifying the recipients of the faxes. Physicians Healthsource, Inc. v. Alma Lasers, Inc., et al., No. 12-4978, 2015 U.S. Dist. LEXIS 41339 (N.D. Ill. Mar. 31, 2015).
From the perspective of defense counsel, this case is a reminder of the importance of holding plaintiffs to their burden proof in showing that all of Rule 23’s requirements are satisfied when opposing a motion for class certification. As we have written previously, plaintiffs face a hurdle in showing a class is ascertainable where there is no objective criteria establishing the identities of recipients of a particular communication.
According to the court’s opinion, Defendant Alma Lasers, Inc. (“Alma”) is a manufacturer of laser devices used in noninvasive, aesthetic medical procedures such as hair removal and leg vein treatment. To promote its products, Alma schedules seminars for medical professionals throughout the country.
In generating potential clients to attend its seminars, Alma purchased contact lists of medical professionals from BrightPath Marketing Services, LLC (“BrightPath”), and it entered that contact information into its general customer list. To promote its seminars, it then contracted with another third party, WestFax, Inc. (“WestFax”), to fax flyers to individuals on its contact list. It did not, however, send the contact lists generated by BrightPath directly to WestFax, so there was never a specific list used for the sole purpose of contacting potential customers by fax. In addition, Alma did not maintain the lists of customers contacted for particular seminars, and the invoices from WestFax only included aggregate data, listing the total number of faxes sent but not the particular numbers to which they were sent.
In a putative class action complaint alleging a violation of the TCPA, Plaintiff Physicians Healthsource, Inc. (“Physicians”) claimed that it received three identical faxes in July and August 2008 promoting an Alma seminar taking place in Columbus, Ohio, in October 2008. The faxes’ headers included the name of M. Raza Khan, M.D., a doctor who had left Physicians a year earlier, but the headers did not include the name of Physicians or its fax number. The faxes had a manual date stamp that Physician said it applied when it received the faxes, but Physicians did not have any other record of an incoming fax from Alma or WestFax. Alma also did not have any contact information for Physicians or Dr. Khan in its marketing database or other records.
Alma argued that the putative class was not ascertainable because Physicians did not provide an objective way of determining which Alma customers received the faxes. Noting that Alma did not maintain a list of individuals who were contacted solely by fax, the court found that, “[a]bsent a ‘master list’ of fax numbers, there is no evidence in the record that establishes which customers were sent Alma seminar faxes.” Physicians also could not overcome the fact that it was not included on any list of fax numbers possessed by Alma, WestFax, or BrightPath.
Alma also argued that Physicians did not have standing to pursue its TCPA claim, because there was insufficient evidence that it had received the fax. The court agreed: “Although the physical possession of Alma’s advertisement suggests the receipt of an Alma fax, the exact recipient of the fax remains in question despite Physicians’ possession of the three faxes.” The fact that there was no record of the fax transmission led the court to conclude that Physicians failed to establish that it had suffered an injury under the TCPA.