In Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., No. 15-1317, 2016 U.S. App. LEXIS 7992 (8th Cir. May 3, 2016), the Eighth Circuit recently reversed a district court’s denial of class certification, ruling that the district court abused its discretion in finding the class to be unascertainable.  Plaintiff had moved to certify a class of persons who “were sent” telephone facsimile messages by Medtox, which did not “display a proper opt out notice.”  Medtox argued that this definition rendered class membership unascertainable because the recipient of each fax is not readily apparent, and thus, thousands of individualized inquiries would be needed to determine who was “sent” the faxes.  For example, the fax at issue in the case although received by Sandusky, which owned and operated the fax machine, had actually been “sent” to a Dr. Montgomery.  The district court agreed with Defendant.  According to the district court, the class definition raised serious “concerns” because “[i]n order to determine to whom each fax was sent – and thus, who was injured, the court would need to delve into the unique circumstances of each fax transmission.”  Sandusky Wellness Ctr. LLC v. Medtox Sci., Inc., 2014 U.S. Dist. LEXIS 107266, *1-2 (D. Minn. Aug. 5, 2014).  On this basis, class certification was denied.

On appeal, however, the decision was reversed.  According to the Eighth Circuit, “the best objective indicator of the ‘recipient’ of a fax is the person who subscribes to the fax number,” and although the subscriber might not always be the recipient, “fax logs showing the numbers that received each fax are objective criteria” that would allow each fax recipient to be determined.  Sandusky, 2016 U.S. App. LEXIS 7992 at *10-11.  Thus, according to the Court of Appeals, the proposed class was ascertainable. The case was remanded to the lower court for further proceedings.