A Telephone Consumer Protection Act (TCPA) defendant scored a victory after an Illinois federal court certified a class of plaintiffs limited to in-state recipients of the faxes at issue.

Following more than eight years of litigation, Practice Management Support Solutions Inc. sought to certify a nationwide class of recipients of faxes sent in 2009 about discount Cirque du Soleil show tickets. After the passage of so much time, transmission logs showing to whom the faxes were successfully sent no longer existed, but the plaintiff obtained invoices, ads and fax target lists that its expert opined could form the basis of the class.

The defendant balked, arguing that class certification should be denied because the plaintiff could not satisfy Federal Rule of Civil Procedure 23(b)(3), particularly the superiority requirement. Without fax transmission logs to facilitate class identification, manageability difficulties would overwhelm administration, Cirque du Soleil told the court.

U.S. District Judge Thomas M. Durkin recognized that TCPA case law supported the defendant’s position, notably a 2017 opinion from the U.S. Court of Appeals, Sixth Circuit in Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc..

“But this court is bound by Seventh Circuit law,” the court said, which has expressly rejected the heightened ascertainability requirement adopted by the Sixth Circuit. The plaintiff also had a starting point for identifying potential class members: the lists of names, addresses and fax numbers of 17,568 individuals targeted with four of the fax broadcasts at issue, as well as an opt-out list.

The potential lack of evidence cited by the defendant goes to the issue of the means of proving a claim, the court said, and “does not by itself make class certification unmanageable.” The process of identifying class members will not affect the defendant’s liability, nor the amount of damages, the court added, and Cirque du Soleil will still have an opportunity to challenge each class member’s claim to recovery.

“[A] contrary holding denying class certification based on the absence of records would create perverse incentives,” Judge Durkin wrote, refusing to allow the defendant to rely on class member identification problems resulting from its own failure to keep records. “If the absence of defendants’ records could defeat class certification, defendants would be motivated to destroy their own records to avoid liability.”

Finding the superiority element satisfied for the time being, the court then turned to the issue of personal jurisdiction in light of a recent Supreme Court decision, Bristol-Myers Squibb v. Superior Court of California. That case involved a group of plaintiffs who brought product liability actions against Bristol-Myers Squibb in California state court, claiming that a prescription drug damaged their health.

After the California Supreme Court found it had jurisdiction to hear the cases, the justices reversed last June, holding that the court lacked specific personal jurisdiction. The plaintiffs were nonresidents and did not claim that they suffered harm in California, with all conduct giving rise to the nonresident claims taking place outside the state, the justices said.

Similarly, Judge Durkin found the court lacked personal jurisdiction over the claims of nonresident class members. Cirque du Soleil is incorporated in Quebec, Canada, with its registered office in Montreal; the U.S. entity is incorporated in Delaware and has its registered office in Las Vegas, NV.

Lacking general jurisdiction over the defendants, the court could not find a basis for specific personal jurisdiction. Under Bristol-Myers, the “mere fact” that Practice Management received a fax in Illinois does not allow for an exercise of specific jurisdiction over the nonresidents’ claims with respect to faxes received outside of Illinois, the court said.

“Because these nonresidents’ claims do not relate to defendants’ contacts with Illinois, exercising specific personal jurisdiction over defendants with respect to them would violate defendants’ due process rights,” the court wrote. “Thus … the Court finds it appropriate to dismiss the claims of the non-Illinois-resident class members.”

The court granted the motion for certification but limited the class members to Illinois residents and entities.

To read the memorandum opinion and order in Practice Management Support Services, Inc. v. Cirque du Soleil, Inc., click here.

Why it matters: The Illinois federal court decision presents a mixed bag for TCPA defendants. On the one hand, the court’s generous reading of Rule 23(b)(3)’s superiority requirement allowed the plaintiff to gain certification of a class that presents significant challenges with regard to manageability. On the other hand, by applying the Bristol-Myers decision to class actions and refusing to find specific personal jurisdiction over nonresident plaintiffs, the court limited the class solely to Illinois residents, reducing the defendant’s liability.