Introduction

Following the Seventh Circuit’s decision in Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), Plaintiff’s counsel typically file motions for class certification along with their Complaints to prevent Defendants from using Rule 68 offers of judgment to “moot” the individual claims of their class representatives and derail the class action.

The strategy apparently backfired on May 28, 2014, when Judge Colin S. Bruce of the U.S. District Court for the Central District of Illinois addressed and denied two such motions in Sturdy v. A.F. Hauser Inc., No. 3:13-CV-03379 (C.D. Ill. May 28, 2014) and Sturdy v. Medtrak Educ. Servs. LLC, No. 3:13-CV-03350 (C.D. Ill. May 28, 2014).

Several months after docketing the motions, the Court issued written opinions refusing to certify two proposed classes of unsolicited fax recipients.  The Court found that Plaintiff failed to demonstrate that the classes were sufficiently large to warrant class treatment and failed to explain how he would ascertain the class members through discovery.  The denial now opens the door for the very thing Plaintiff’s counsel sought to avoid – offers of judgment directed at their client.  (Read more here and here.)

These cases demonstrate that the numerosity requirement for class certification in Rule 23(a)(1) still has some teeth.  Plaintiffs’ attorneys cannot meet the requirement with mere speculation, and Defendants should not overlook the requirement as a method by which to defeat certification of class claims.

Factual Background 

Plaintiff Dr. Mark W. Sturdy brought two putative class actions, one against A.F. Hauser Inc., and one against Medtrak Educational Services and other entities.  Plaintiff alleged that he received unsolicited fax messages from the Defendants that advertised their products and services.

He asserted claims for violation of the Telephone Consumer Protection Act (TCPA), violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, and Illinois common law claims for conversion, private nuisance, and trespass to chattels.

Along with the Complaints, Plaintiff filed concurrent motions for class certification.  Plaintiff alleged that Defendants sent the faxes as part of advertising campaigns, and therefore, it was “reasonable to infer” that Defendants sent them to more than 20 to 40 people.  Plaintiff moved to “enter and continue” the motions.

In A.F. Hauser, the Court allowed Plaintiff’s motion to “enter and continue” in that it entered Plaintiff’s motion for class certification in the record and struck the response date.  In Medtrak, the Court allowed the filing of Plaintiff’s motion for class certification and continued it until the initial status conference.

Several months later, without responses from the Defendants, the Court issued opinions denying class certification in both cases.

The Court’s Opinions

The Court denied both motions because, in both cases, Plaintiff failed to establish numerosity under Rule 23(a)(1).  Numerosity requires that the class be “so numerous that joinder of all members is impracticable.”

Plaintiff argued that the Court should infer that the faxes were sent to more than 40 people because “it would make no economic sense to prepare and send such a fax unless it is sent to more than 40 people.”

The Court refused to make such an inference.  Plaintiff offered no reason why he chose a class of at least 40 members or why it would not make economic sense to send the fax to fewer recipients.  The Court, accordingly, dismissed Plaintiff’s reasoning as “speculative” and “not properly supported.”

Plaintiff also failed to establish any way to ascertain the class members.  While class members need not be ascertained prior to certification, they must be ascertainable at some point in the case, and plaintiff must establish an objective way to determine who is a class member.

In his brief, Plaintiff claimed that he would obtain the exact number of class members through discovery.  However, Plaintiff did not show that Defendants used a specific list or database when sending faxes, and the record did not contain any reference to how the class members would or could be ascertained.

Implications

Plaintiff filed motions for class certification with his complaints and apparently without much investigation as to the numerosity requirements.  While the strategy, no doubt, prevented Defendants from “buying off” the named Plaintiff at the outset, Plaintiff failed to supplement his motions, and the Court ultimately found his showing insufficient.  It found Plaintiff’s allegations of numerosity speculative and not properly supported, and it found that Plaintiff failed to establish any objective, reasonable way to ascertain potential class members.  Defendants should take a lesson from the opinions and be on the lookout for similar opportunities to take advantage of deficiencies in Plaintiff’s initial showings.