The Eastern District of Michigan recently certified a class of plaintiffs suing under the Telephone Consumer Protection Act (TCPA), rejecting the defendants’ arguments that: (1) there would be “significant issues” identifying class members because the faxes at issue were sent nearly a decade ago; and (2) some putative class members may have had prior business relationships with the defendants and thus may have consented to receipt of the faxes. The defendants had hired a third party to send advertisements via facsimile – a practice known as “fax blasting.” The plaintiff filed suit, alleging that the third party’s fax blasting on the defendants’ behalf violated the TCPA and sought to certify a class of “[a]ll persons sent one or more faxes” advertising the defendants’ business on certain dates in late 2006. While the plaintiff’s motion for certification was pending, the defendants moved for summary judgment, asserting that the plaintiff lacked standing because it had no personal knowledge of the faxes at issue, and, alternatively, that “the TCPA does not provide direct liability where a third party broadcasted the fax.”

The district court granted the defendants’ summary judgment motion and denied as moot the plaintiff’s motion for class certification. The plaintiff appealed. The Sixth Circuit reversed and remanded, holding that “despite its lack of personal knowledge of the faxes … Plaintiff has Article III standing to bring the case, and that the TCPA provides for direct liability against a defendant whose goods or services are advertised in the fax at issue, even if that party did not broadcast the fax.”

On remand, the district court considered the plaintiff’s motion for class certification. The defendants attacked the ascertainability of the class, arguing that because the faxes were sent nearly a decade prior there could be “difficulties in identifying class members.” The defendants also asserted that some class members may have consented to the faxes through their prior business relationship with the defendants, which would be a defense to a TCPA claim. Citing Sixth Circuit precedent, the district court noted that, to satisfy the ascertainability requirement, “the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.” Based on that standard, the court found that the age of the faxes posed no impediment to ascertainability because it was “feasible” to determine the class members simply by reviewing a list of the numbers to which the faxes were sent. Next, the court concluded that the defendants’ consent argument did not preclude a finding of ascertainability because there was no reason to conclude that more than a few putative class members consented to receiving the faxes, and, further, that the defense could be presented later in the litigation and did not by itself prevent class certification. The court then found that the proposed class met both the Rule 23(a) and 23(b) requirements for certification, based largely on the uniformity of the faxes at issue and the legal issues presented.

Avio, Inc. v. Alfoccino, Inc., No. 10-CV-10221 (E.D. Mich. Dec. 14, 2015).