A federal district court in Maryland refused to certify a class in a TCPA fax-blast case because members of the class sought to be certified were not presently ascertainable using objective criteria after recipient information was destroyed by third-party vendors in the regular course of business. See Brey Corp. (t/a Hobby Works) v. LQ Management LLC, No. 11-cv-00718 (D. Md. Jan. 29, 2014).
In Brey, the plaintiff alleged that LQ Management d/b/a La Quinta Inns and Suites (“La Quinta”) engaged in a widespread advertising campaign in which they sent thousands of unsolicited faxes in violation of the TCPA. Id. After conducting discovery, the plaintiff sought to certify a class defined as:
All persons or entities in the United States of America who were sent at least one unsolicited facsimile advertisement that promoted La Quinta goods or services at any time within the four years prior to the filing of the Complaint in this action.
Pl.’s Mot. for Class Certification (Dkt. #55). The case was filed on March 18, 2011, but the only fax campaign evidenced during discovery took place between March 2007 and July 2008, and therein was the problem for the plaintiff.
In carrying out its advertising campaign in 2007 and 2008, La Quinta used two third-party vendors – a lead generator and a fax broadcaster – neither of whom are parties in the case. By the time the plaintiff filed suit in 2011, however, neither of the vendors had records of the fax numbers that received La Quinta’s faxes in 2007 and 2008, because the records had been destroyed in the ordinary course of business.
The plaintiff argued that the lack of a recipient list should not be fatal to class certification because not all class members needed to be positively identified, and instead simply needed to be “ascertainable.” The plaintiff noted that its expert used vendor data from 2012 to recreate a snapshot of the 2007-2008 recipient lists and argued that La Quinta should not be permitted to escape liability on the basis of the destruction of records.
In response, La Quinta argued that vendor data from 2012 could not be used to reliably ascertain class membership, as evidenced by the fact that even the named the plaintiff, Brey Corporation, did not appear on the plaintiff’s “recreated” list of recipients. This, according to La Quinta, meant that ascertaining class membership would require thousands of mini-trials to determine (1) whether the person or entity received a fax from La Quinta, and (2) whether the fax was unsolicited.
The district court agreed with La Quinta. It held that the class could not be certified for a number of reasons. First and foremost, class membership was not presently ascertainable by reference to objective criteria because “a putative class member would only be able to establish his, her, or its standing only by submitting an affidavit that he, she, or it had received the unsolicited fax.” Id. at *3. Second, and compounding the first issue, the court reasoned that because the faxes were sent in 2007 and 2008, the recollection of a putative class member as to whether he received a fax “would be somewhat suspect.”Id. at *4. The court also noted some additional factors favoring denial of class certification, including that the TCPA’s apparent purpose of generally deterring unsolicited faxes would not be served because “nothing in the record suggests that defendant continues to engage in the sending of unsolicited faxes.” Id. Moreover, the court pointed out the questionable nature of the retainer agreement between the plaintiff and the plaintiff’s counsel, under which the plaintiff had agreed to send counsel any unsolicited faxes it received so that counsel could determine whether a violation of the TCPA had occurred. Id. at *5. This made the provenance of the litigation “somewhat suspect” in the court’s eyes. Id.
This decision demonstrates that, even though the entire class membership need not be definitively determined for class certification, it must be ascertainable through objective criteria. Where questions of standing cannot be answered without delving into specific individual inquiries, class certification is not appropriate.