Bloomberg BNA interviewed Manatt’s Richard Gottlieb, a partner in the firm’s consumer financial services practice, for an article about a class action filed in Illinois state court alleging that consumers received unsolicited fax messages from a consulting company. Upon being removed to federal court, the case revealed a disparity amongst courts’ ascertainability and consent standards in TCPA cases.
Gottlieb asserts that this case “was bound to follow the Seventh Circuit,” which has established that as long as the class deﬁnition is spelled out clearly and objectively, ascertainability is met. However, there were some surprising aspects to the decision, Gottlieb said. ‘‘The ease in which the court accepted the faulty premise that the class was the least bit ascertainable under the facts,’’ was surprising, he said. The argument that ‘‘you can identify a universe of potential class members doesn’t negate the common sense conclusion that there is no way the true subset of class members may prove up their claims without mini- trials,’’ he added.