On Monday, Judge David A. Katz of the United States District Court for the Northern District of Ohio denied the plaintiff’s motion for class certification in Sandusky Wellness Center, LLC v. Wagner Wellness, Inc., No. 3:12-cv-02257 (Doc. #42) (N.D. Ohio, Mar. 24, 2014) on the grounds that the proposed class could not meet the commonality requirement of Rule 23, as clarified by the Supreme Court in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). 

The Telephone Consumer Protection Act, which generally prohibits the sending of unsolicited facsimile advertisements and under which the plaintiffs had sued, contains an exception allowing for unsolicited fax advertisements to be sent “from a sender with an established business relationship with the recipient.” 47 U.S.C. 227(b)(1)(C)(i). The record in the case had established that the recipient list of the unsolicited fax advertisements from Wagner Wellness, Inc., which had been sent “to promote their business and invite physicians to seminars discussing their products [vitamins and nutritional supplements],” included persons with established business relationships and prior communications with Wagner.

The court observed that because Dukes held that the claim must be based on “’a common contention—…[whose] determination’ may be resolved ‘in one stroke,’” Sandusky Wellness’s request to certify its class could not be granted. The proposed class — all persons who received the unsolicited advertisement from Wagner without proper opt-out notice after September 5, 2008 — did not account for, and thus improperly included, those persons and entities that either had requested the fax or had an “established business relationship” with Wagner, which were individualized fact determinations that would preclude resolving the class claims with the requisite commonality.