The Eighth Circuit Court of Appeals’ recent ruling in Sandusky Wellness Center LLC v. Medtox Scientific Inc. adopted a “lower threshold” requirement for class ascertainability. Although the ruling deepened a circuit split on one of the more challenging class certification issues, this decision reflects a legal trend favoring class actions.
Courts generally agree that a putative class should not be certified unless the members of the class are ascertainable. Rule 23 of the Federal Rules of Civil Procedure contains an implicit threshold requirement that members of a proposed class be readily identifiable. However, courts disagree on what is required to prove ascertainability. Since the Third Circuit’s decisions in Marcus v. BMW, Hayes v. Wal-Mart Stores Inc., and Carrera v. Bayer Corp., circuits have been split on the proper ascertainability standard. The Third Circuit’s “heightened” standard requires that:
• the class is “defined with reference to objective criteria,” and
• there is a “reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”
On the other hand, a minority of circuits, led by the Seventh Circuit, hold that the “administrative” concerns of ascertainability are properly addressed under a careful application of Rule 23(a) and Rule 23(b)(3), and ascertainability only requires an objectively defined class.
In Sandusky, the Defendant toxicology lab, Medtox Scientific Inc. contacted pediatricians, family practitioners, health departments, and child-focused organizations about its lead testing capabilities. Using a directory from a health insurance company, Medtox transmitted a single-page fax to 3,256 numbers within a nine-day period. One of those numbers belonged to the Plaintiff, Sandusky Wellness Center LLC. Sandusky’s name was not specifically on the contact list, but Dr. Bruce Montgomery – a family practitioner who worked one day a week at the center – was on the contact list.
Sandusky filed suit under the Telephone Consumer Protection Act (TCPA), which prohibits the use of any telephone facsimile machine to send to another facsimile machine an unsolicited advertisement unless certain exceptions apply. Sandusky sought to certify a class of all persons who were sent faxes regarding lead testing services by or on behalf of the Defendant. The district court denied class certification, holding that the class was “not ascertainable, because it does not objectively establish who is included in the class.” The district court concluded that the class was not ascertainable because of the need to conduct individualized inquiries to determine which class members were injured under the TCPA.
On appeal, the Eighth Circuit focused on the language of the TCPA, which prohibits sending an unsolicited fax advertisement to a “recipient.” The Court concluded that a “recipient” is “the person or entity that gets the fax,” and “[t]he best objective indicator of the ‘recipient’ of a fax is the person who subscribes to the fax number.” The Eighth Circuit determined that “fax logs showing the numbers that received each fax are objective criteria that make the recipient clearly ascertainable.” Most importantly, the opinion defined the ascertainability standard within the Eighth Circuit, requiring only that the class be defined in reference to objective criteria.
The Eighth Circuit joins the Sixth and Seventh Circuits in adopting this standard. The Fifth, Ninth, Tenth, and D.C. Circuits have remained silent on the issue, while the remaining circuits have adopted the higher threshold. Until the United States Supreme Court clarifies the ascertainability standard, the rigorousness of the analysis will depend on the location of the action. Decisions such as Sandusky, though, lower the bar for Plaintiffs seeking class certification and provide more ammunition for Plaintiffs’ counsel seeking to bring nationwide class actions. If you need more information contact Leslie Pescia, a lawyer in our firm’s Consumer Fraud and Commercial Litigation Section, at 800-898-2034 or by email at Leslie.Pescia@beasleyallen.com.
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