North Carolina Business Litigation Report

Blitz v. Agean, Inc., 2007 NCBC 21 (N.C. Super. June 25, 2007)(Diaz)

This was the second effort of this plaintiff to secure class certification of a claim under the Federal Telephone Consumer Protection Act. The Court discussed the requirements for class certification, and found that certification should be denied. The individualized inquiries that would be necessary to determine whether the faxed advertisements at issue were unsolicited, and whether there was an "established business relationship" between the sender and the recipients predominated over the common issues. The lack of any evidence of consent, or of an established relationship, was not preclusive because the Court found that it would still be required to undertake this inquiry. Plaintiff could not avoid this inquiry through the manner in which it chose to define the class. Nor was the class action device the superior means of resolving controversies of this type. The members of the class were free to go to small claims court if they desired.

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Mack Sperling
Brooks Pierce, LLP
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Greensboro, NC 27401

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