It’s about junk faxes and class certification again (and even again) in the Business Court. Wednesday’s decision in Blitz v. Agean, Inc., 2012 NCBC 20 marks the third time the Court has refused to certify a class action under the Federal Telephone Consumer Protection Act. (The TCPA, 42 U.S.C. §227, prohibits the transmission of "unsolicited advertisements" to fax machines)
The same Agean case had already been the subject of a dismissal by Judge Diaz, five years ago, but which was reversed by the Court of Appeals in a 2009 decision. Judge Diaz had hung up on another putative TCPA class action by Mr. Blitz in Blitz v. Xpress Image, Inc., 2006 NCBC 10. That one wasn’t appealed.
So why couldn’t the Plaintiff in Agean connect, even after the COA ruling? Judge Murphy said that even if a common question predominates in a class action, that this isn’t the end of the analysis. He held "a common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class." (quoting Carnett’s, Inc. v. Hammond, 610 S.E.2d 529, 532 (Ga. 2005).
It was getting the answer to the question of whether each of the proposed class members had received unsolicited faxes was the problem. Blitz said the class members were all persons whose fax numbers were on a list purchased by the Defendants, but some of those on the list had requested that the Defendants send them faxes. So those persons weren’t entitled to be class members.
Judge Murphy said that the Court’s time, at trial, would be consumed with determining whether those included in the proposed class definition were entitled to be members of the class. Judge Murphy said that "[t]his would have the Court conducting individual inquiries into each [fax] number and result in the type of mini-trials that class actions are designed to avoid." Op. ¶36.
But that wasn’t the only flaw in Plaintiff’s case seen by Judge Murphy. He was concerned that the class action was being used by Blitz as "inappropriate leverage" to settle his own claims, which were worth only about $2500 (the statute authorizes $500 in damages for each unsolicited fax). Judge Murphy quoted an early Judge Tennille opinion, Lupton v. Blue Cross & Blue Shield, 1999 NCBC 3, for the proposition that:
Class actions can involve amounts that threaten to cripple or bankrupt the defendant. This creates a potential for abuse that is readily apparent: the use of the class action complaint to put greater financial pressure on defendants to settle with the individual plaintiff.
Judge Murphy, sensing that type of financial pressure at work, said that in his discretion certification "would be unjust on equitable grounds." Op. ¶39.
Sometimes it takes longer to find the picture for the post than it takes to write the post. Today was one of those days. I scoured the Internet for a picture of Yogi Berra sending a fax, which would have been ideal, but there are none to be found. But I was surprised to find that Yogi can be faxed at his family company, LTD Enterprises (the number is 973-655-6788). So with Yogi’s unavailability, a dinosaur is what you get. That’s what the fax machine has become. There also were no pictures available of dinosaurs sending faxes (come on, look at those little hands on the tyrannosaurus!) and not even a fax number for a dinosaur.