Kaye et al v. Amicus Mediation & Arbitration Group, Inc. et al

Filing 86

RULING denying 58 Motion to Dismiss for Lack of Jurisdiction; granting 60 Motion to Certify Class Class A and subclasses of Classes B and C are hereby CERTIFIED as defined in ruling. Lead plaintiffs Roger H. Kaye and Roger H. Kaye, MC PC are hereby APPOINTED as class representives of each class. Plaintiffs' counsel Attorneys Aytan Y. Bellin and Roger Furman are hereby APPOINTED as class counsel for each of the three classes.. Signed by Judge Janet C. Hall on 5/27/2014. (Malone, P.) (Additional attachment(s) added on 5/28/2014: # 1 Replacement PDF) (Lewis, D).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROGER H. KAYE et al.,
Plaintiffs,
v.
AMICUS MEDIATION & ARBITRATION
GROUP, INC. et al.,
Defendants.

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CIVIL ACTION NO.
3:13-CV-347 (JCH)
MAY 27, 2014

RULING RE: DEFENDANTS’ MOTION TO DISMISS (Doc. No. 58) AND PLAINTIFFS’
AMENDED MOTION FOR CLASS CERTIFICATION (Doc. No. 60)
I.

INTRODUCTION
Plaintiffs Roger H. Kaye and Roger H. Kaye, MD PC (collectively, “plaintiffs”)

bring this action against defendants Amicus Mediation & Arbitration Group, Inc.
(“Amicus”) and Hillary Earle (collectively, “defendants”) on behalf of themselves and all
others similarly situated. Plaintiffs‟ Complaint (Doc. No. 1) sets out three classes: it
alleges violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
227, with respect to two classes and violations of state law, Conn. Gen. Stat. § 52-570c,
with respect to the third.
Pending before the court are plaintiffs‟ Amended Motion for Class Certification
and defendants‟ Motion to Dismiss. For the reasons set forth below, plaintiffs‟ Motion
(Doc. No. 60) is GRANTED, and defendants‟ Motion (Doc. No. 58) is DENIED.
II.

BACKGROUND
A.

Individual Allegations

The Complaint alleges that the defendants sent unsolicited faxes to the named
plaintiffs on six dates: October 17, 2010; January 14, 2011; January 22, 2011; January

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30, 2011; June 6, 2011; and June 25, 2011. Compl. (Doc. No. 1) ¶¶ 10-11.1 Although
these faxes included a note regarding how not to receive future faxes (the “Opt-Out
Notice”), the Opt-Out Notice was allegedly defective in several respects. Id. ¶¶ 12-13.
Specifically, the Opt-Out Notice allegedly lacked at least five items required by the
TCPA: (1) a telephone number to call in order to opt out of receiving future faxes, id. ¶
13(B); (2) a fax number for that same purpose, id. ¶ 13(C); (3) a statement that, to be
effective, an opt-out request must identify the fax number to which the request is
related, id. ¶ 13(D); (4) a statement that the sender‟s failure to comply with an opt-out
request within thirty days is unlawful, id. ¶ 13(E); and (5) a statement that a proper optout request remains effective unless the sender receives an express invitation or
express permission subsequent to that request, id. ¶ 13(F).
B.

Class Allegations

Plaintiffs allege that, between March 2009 and March 2013, when the Complaint
was filed, defendants sent over five thousand fax advertisements to thousands of
persons in the United States that contained a notice identical or substantially similar to
the Opt-Out Notice in the fax advertisements received by the named plaintiffs, id. ¶ 15;
that, during this same period, defendants sent over five thousand fax advertisements to
thousands of persons in the United States that were, like the fax advertisements sent to
the named plaintiffs, unsolicited, id. ¶ 16; and that, from March 2011 to March 2013,
defendants sent thousands of unsolicited fax advertisements to thousands of persons in
Connecticut, id. ¶ 17.

1

Plaintiffs attached to the Complaint copies of seven fax advertisements, two sent on the same
day, January 30, 2011. See Ex. A to Compl. (Doc. No. 1-1).

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Accordingly, the Complaint sets forth three putative classes—Classes A, B, and
C—on whose behalf the named plaintiffs bring this action. Class A would comprise all
persons to whom the defendants sent fax advertisements containing a notice identical
or substantially similar to the Opt-Out Notice between March 2009 and March 2013. Id.
¶ 19. Class B would comprise all persons to whom the defendants sent fax
advertisements that were unsolicited during that same period. Id. Class C would
comprise all persons in Connecticut to whom the defendants sent unsolicited fax
advertisements from March 2011 to March 2103. Id.
Plaintiffs seek statutory damages on each of these claims, an injunction
prohibiting the defendants from future violations, and costs and attorney‟s fees.
C.

Class-Related Discovery

Defendants faxed the alleged advertisements at issue in this case through a
service called Rapid Fax offered by the company Data on Call. Pls.‟ Ex. C (Doc. No.
62-5), Defs.‟ Resp. to Interrog. No. 24 (“Defendant uses Rapid Fax as its online faxing
service and has utilized Rapid Fax during all relevant times at issue in this action”).
Rapid Fax allows users to log onto their internet account, choose numbers to which to
send a particular fax, fill out a cover sheet, upload a file, and click send. Although the
defendants are unable to determine from their records the precise number of alleged fax
advertisements sent to persons in the United States between March 2009 and March
2013, they admit to sending over a thousand such advertisements. Pls.‟ Ex. F (Doc.
No. 62-8), Earle Dep. 137:7-22. Defendants also admit that these faxes contained
either no opt-out notice or one identical or substantially similar to the Opt-Out Notice on
the faxes received by the named plaintiffs. Pls.‟ Ex. C, Resp. to Interrog. No. 13.

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In the discovery to date, defendants have produced a directory of the names and
contact information of persons to whom they sent faxes via Rapid Fax (the “Directory”).
Bellin Decl. (Doc. No. 62) ¶ 3.2 In addition, Data on Call has produced a log of
defendants‟ outgoing transactions via Rapid Fax from June 1, 2012 to March 14, 2013
(“Outgoing Transactions Log”) as well as a log of the documents faxed during that
period (“Outgoing Documents Log”). Pls.‟ Exs. H & I. The Outgoing Transactions Log
shows a series of identical one- or two-page faxes sent in batches within minutes of one
another. Pls.‟ Ex. H. During the period covered by the logs from Data on Call,
defendants sent 4,102 such faxes, including 649 to fax numbers with Connecticut area
codes. Id.; Bellin Decl. ¶¶ 8-9. The Outgoing Documents Log identifies the file name of
the document faxed for each of the transactions in the Outgoing Transactions Log and
thereby confirms which faxes were sent to numerous recipients. Pls.‟ Exs. H & I. The
file names are generally descriptive. Pls.‟ Ex. I.
Defendant Amicus provides mediation and ADR services primarily for personal
injury claims. Earle Dep. 15:6-10, 17:6-10. Defendant Earle founded and runs Amicus
and, as pertinent here, was in charge of marketing its services. Id. 19:8-10. The
alleged fax advertisements in this case consist of announcements of Amicus‟s
mediation days, copies of which defendants have produced in discovery. Pls.‟ Ex. B.
Defendants sent these announcements, via Rapid Fax, to plaintiff-side attorneys in the
Directory. Id. 28:13-22. Defendants obtained attorneys‟ fax numbers from various

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Due to confidentiality, the Directory was not submitted in connection with plaintiffs‟ Amended
Motion for Class Certification. Bellin Decl. ¶ 3. Defendants maintained, in fact, two accounts at Rapid
Fax, with two corresponding directories, one devoted to Rhode Island, the other to non-Rhode Island
contacts. Earle Dep. 55:22-24, 56:15-19. Because the court has not seen the Directory, it is not clear
whether one or the other or a composite of the two was produced to plaintiffs.

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sources: Martindale-Hubbell; online searches; insurance carriers and claims adjustors;
and directories like the Connecticut Trial Lawyers Association (“CTLA”), in which the
named plaintiffs‟ fax number was listed. Pls.‟ Ex. C, Resp. to Interrog. No. 6. In
addition, defendants added to the Directory fax numbers of prior clients upon faxing a
contract to those clients. Earle Dep. 20:3-8, 39:25; 40:2-11.
Defendants disclaim having possession of other documentation of when and to
whom they sent fax advertisements between March 2009 and March 2013, the period
covered by Classes A and B. Compl. ¶ 19. Data on Call has produced continuous logs
of defendants‟ outgoing fax activity only for the period from June 1, 2012 to March 14,
2013. However, at the time of the filing of plaintiffs‟ Amended Motion for Class
Certification, Data on Call had indicated that it would produce records of defendants‟
outgoing transactions, via Rapid Fax, on the six additional dates on which the named
plaintiffs allegedly received fax advertisements from the defendants: October 17, 2010;
January 14, 2011; January 22, 2011; January 30, 2011; June 6, 2011; and June 25,
2011. Bellin Decl. ¶ 7. Data on Call has since produced these records, which show
that defendants transmitted an additional 1,475 similar one- or two-page faxes on those
six dates. See Pls.‟ Reply (Doc. No. 80) at 20; Pls.‟ Ex. A to Pls.‟ Reply (Doc. No. 80-1).
D.

Procedural History

In May 2013, defendants moved to dismiss (1) the Class A claim to the extent
that it involves solicited faxes, (2) the entirety of the Complaint as it pertains to
defendant Earle, and (3) the Class B claim. At that same time, which was less than two
months after the filing of the Complaint and prior to discovery, plaintiffs moved
prophylactically for class certification in order to prevent an offer of judgment to the

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named plaintiffs from possibly mooting the class action. Plaintiffs also moved to stay
consideration of their Motion for Class Certification pending discovery.
On September 2, 2013, the court held oral argument on these motions. For the
reasons stated on the record, the court denied defendants‟ Motion to Dismiss, holding
that solicited faxes may violate the TCPA if they contain defective opt-out notices, that
the court has personal jurisdiction over Earle, and that the overlap between the Class A
and Class B claims is not a basis for striking the Class B claim at the pleadings stage.
On September 9, 2013, the court denied plaintiffs‟ Motion to Stay but granted
leave to make supplementary filings in support of class certification by December 16,
2013, on which date plaintiffs filed the instant Amended Motion for Class Certification.
In March 2014, the court terminated plaintiffs‟ prior Motion for Class Certification as
moot in light of the Amended Motion.
In September 2013, defendants served an offer of judgment (the “Offer”) on the
named plaintiffs pursuant to Rule 68 of the Federal Rules of Civil Procedure. See Defs.‟
Ex. C to Defs.‟ Mot. to Dismiss (“Offer of J.”) (Doc. No. 58-1) at 45-56. On December
11, 2013, having made the Offer, which was not accepted within the 14-day window
provided by Rule 68, defendants filed the instant Motion to Dismiss pursuant to Rule
12(b)(1).
E.

Offer of Judgment

Under the terms of the Offer, defendants would allow judgment to be taken
against them in the amount of $16,500, plus costs and reasonable attorney‟s fees to be
determined by the court. Id. at 45. As part of the Offer, the defendants agreed that they
would enter into a stipulated injunction prohibiting them from committing future TCPA
violations. Id. Finally, the Offer stated that, to the extent such relief did not fully satisfy
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plaintiffs‟ claims, the defendants would provide “any other relief” deemed necessary by
the court to award full satisfaction. Id.
III.

DISCUSSION
A.

Motion to Dismiss

A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) if the district court lacks the statutory or constitutional power to adjudicate the
case. Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013). Although the
court takes all facts alleged in the complaint as true, subject matter jurisdiction must be
shown affirmatively, and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting jurisdiction. Morrison v. Nat'l Austl. Bank
Ltd., 547 F.3d 167, 170 (2d Cir.2008). Hence, on a Rule 12(b)(1) motion, the plaintiff
bears the burden of proving by a preponderance of the evidence that jurisdiction exists.
Id. (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)).
Article III of the Constitution limits the jurisdiction of federal courts to cases and
controversies. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013). “A
corollary to this case-or-controversy requirement is that an actual controversy must be
extant at all stages of review, not merely at the time the complaint is filed.” Id. (citation
and internal quotation marks omitted). Therefore, where “an intervening circumstance
deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point
during litigation, the action can no longer proceed and must be dismissed as moot.” Id.
(citation and internal quotation marks omitted).
Rule 68 states,
At least 14 days before the date set for trial, a party defending against a
claim may serve on an opposing party an offer to allow judgment on
specified terms, with the costs then accrued. If, within 14 days after being
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served, the opposing party serves written notice accepting the offer, either
party may then file the offer and notice of acceptance, plus proof of
service. The clerk must then enter judgment.
Fed. R. Civ. P. 68(a). In the case of an unaccepted offer, “if the judgment that the
offeree finally obtains is not more favorable than the unaccepted offer, the offeree must
pay the costs incurred after the offer was made.” Fed. R. Civ. P. 68(d). “The plain
purpose of Rule 68 is to encourage settlement and avoid litigation.” Marek v. Chesny,
473 U.S. 1, 5 (1985); see also Symczyk, 133 S. Ct. at 1536 (Kagan, J., dissenting)
(“Rule 68's exclusive purpose [is] to promote voluntary cessation of litigation by
imposing costs on plaintiffs who spurn certain settlement offers.”).
There is a split among the Circuits as to whether an unaccepted Rule 68 offer
that fully satisfies a plaintiff's claims necessarily renders those claims moot. Symczyk,
133 S. Ct. at 1528-29 & n.3; Cabala v. Crowley, 736 F.3d 226, 228 n.2 (2d Cir. 2013).
In this Circuit, a plaintiff is not entitled to continue litigating if the defendant consents to
judgment in the maximum amount for which the defendant could be held liable,
regardless of any admission of liability, and regardless of whether the defendant
consents to the entry of judgment by means of a written Rule 68 offer. Cabala, 736
F.3d at 230; Doyle, 722 F.3d at 80; McCauley v. Trans Union, LLC, 402 F.3d 340, 341
(2d Cir. 2005). In such a case, mootness follows from the fact that the defendant could
simply choose not to appear and thereby suffer the court to enter default judgment
against him. McCauley, 402 F.3d at 341-42. While the Circuits have also split as to the
proper manner of disposing of such cases, the practice directed by the Second Circuit is
to enter judgment for the plaintiff on the terms of the unaccepted offer. Cabala, 736
F.3d at 228.

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Rule 68 offers pose special concerns in the context of class actions. See 12
Charles Alan Wright et al., Federal Practice and Procedure § 3001.1 (2d ed. 1997)
(“There is much force to the contention that, as a matter of policy, the rule should not be
employed in class actions. Class actions can only be settled with the approval of the
court, and the judge is not required to acquiesce in the desire of the class
representative that the case be settled.”); 13 James Wm. Moore et al., Moore‟s Federal
Practice § 68.04[3] (“The language of Rule 68 contains no exception for particular kinds
of actions. However, it is questionable whether the offer-of-judgment rule should apply
to cases such as class or derivative actions that require judicial approval of a
settlement.”). Even courts that agree on the applicability of the offer-of-judgment rule to
class actions differ as to the effect of Rule 68 offers relative to the timing of Rule 23
motions. Compare, e.g., Weiss v. Regal Collections, 385 F.3d 337, 348 (3d Cir. 2004)
(permitting relation back to the filing of the class complaint, absent undue delay in
moving for certification), with Damasco v. Clearwire Corp., 662 F.3d 891, 895 (7th Cir.
2011) (“[A] plaintiff cannot avoid mootness by moving for class certification after
receiving an offer of full relief.”). See generally Comer v. Cisneros, 37 F.3d 775, 798801 (2d Cir. 1994) (discussing mootness exceptions in class certification context).
The procedural history of the instant case, in which plaintiffs first moved for class
certification two months after filing the case and prior to any discovery, is explained by
the absence of definitive guidance on these issues from the Supreme Court and the
Second Circuit. This court is mindful of the dilemmas faced by plaintiffs in such cases
and of the potential for Rule 68 offers to undercut the viability of Rule 23 as a
mechanism for aggregating small claims by “picking off” would-be class representatives.

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Vogel v. Am. Kiosk Mgmt., 371 F. Supp. 2d 122, 126-27 (D. Conn. 2005) (citing Weiss
v. Regal Collections, 385 F.3d 337, 345 (3d Cir. 2004)). However, despite the parties‟
extensive briefing on these unsettled questions, the court does not reach them because
there is a preliminary dispute as to whether the Offer even fully satisfies plaintiffs‟
individual claims. See Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 567 (6th Cir.
2013) (“An offer limited to the relief the defendant believes is appropriate does not
suffice. The question is whether the defendant is willing to meet the plaintiff on his
terms.”).
This dispute regarding the damages recoverable on plaintiffs‟ individual claims
suffices to satisfy Article III‟s case-or-controversy requirement, independent of any
interest plaintiffs may have, at this stage, in representing the class. Defendants assert
that, even assuming willfulness, which entitles plaintiffs to treble damages under the
TCPA, the maximum recovery for the seven faxes at issue—two of which fall within the
two-year statutory period also covered by section 52-570c of the Connecticut General
Statutes—is $11,500 (($500 x 3 x 7) + ($500 x 2)). See Defs.‟ Reply (Doc. No. 73) at 22
n.8. The Offer stipulates to entry of judgment for monetary damages in the amount of
$16,500, which plainly exceeds what defendants calculate to be the maximum available
recovery. Plaintiffs argue, however, that each fax violated eleven different statutory and
regulatory requirements of the TCPA. Hence, by plaintiffs‟ calculation, the maximum
available recovery under the TCPA alone is $115,500 ($500 x 3 x 11 x 7). While
defendants may well prevail in their view of the law, this dispute as to whether multiple
statutory damages awards can be recovered for a single fax‟s multiple TCPA violations
goes to the merits of plaintiffs‟ individual claims and the corresponding amount that

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would be necessary to satisfy these claims. Success on the merits of these claims is
not a jurisdictional fact to be found by the court in order to decide the instant Rule
12(b)(1) Motion. Bell v. Hood, 327 U.S. 678, 682 (1946) (“[I]t is well settled that the
failure to state a proper cause of action calls for a judgment on the merits and not for a
dismissal for want of jurisdiction.”); see also Chafin v. Chafin, 133 S. Ct. 1017, 1024
(2013) (“[Plaintiff‟s] prospects of success are . . . not pertinent to the mootness
inquiry.”).3 However reasonable the Offer was or proves to have been, the disparity
between its terms and the individual recovery sought by plaintiffs precludes a finding of
mootness. Hrivnak, 719 F.3d at 568.4
Having concluded that a live dispute remains, as required by Article III, the court
denies defendants‟ Motion to Dismiss (Doc. No. 58).

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The court may reject a patently frivolous claim asserted as a basis for jurisdiction. Hagans v.
Lavine, 415 U.S. 528, 536 (1974) (“Over the years this Court has repeatedly held that the federal courts
are without power to entertain claims otherwise within their jurisdiction if they are „so attenuated and
unsubstantial as to be absolutely devoid of merit,‟ „wholly insubstantial,‟ „obviously frivolous,‟ „plainly
unsubstantial,‟ or „no longer open to discussion.‟” (citations omitted)). However, plaintiffs‟ argument here
is not so insubstantial as to deprive this court of jurisdiction. Plaintiffs‟ ability to recover statutory
damages for certain regulatory violations as well as to recover multiple such awards for multiple violations
in connection with a single fax is not clear on the face of the TCPA, and the parties cite conflicting
authority on these subjects. See Pls.‟ Opp‟n to Defs.‟ Mot. to Dismiss (Doc. No. 70) at 24-25; Defs.‟ Reply
(Doc. No. 73) at 19-21.
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Although the Offer also provides for injunctive relief, costs and attorney‟s fees, and any other
relief deemed necessary by the court to award full satisfaction of plaintiffs‟ individual claims, Offer of J. at
45, these additional terms do not alter the result. The court‟s calculation of costs and reasonable
attorney‟s fees may not involve any substantive determination on the merits. That provision, however,
does not moot the dispute as to statutory damages, nor does the catchall provision of “any other relief.”
Indeed, the latter provision cannot be the basis for finding mootness, because the court would have to
resolve plaintiffs‟ claims on the merits in order to give content to the “other relief” to which plaintiffs are
entitled that was missing on the face of the Offer.

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B.

Amended Motion for Class Certification
1.

Class Definitions

Plaintiffs seek certification of the following three classes:
Class A: All persons to whom defendants sent or caused to be sent a fax
advertisement containing a notice identical or substantially similar to the
Opt-Out Notice from June 1, 2012 through March 14, 2013, or on October
17, 2010, January 14, 2011, January 22, 2011, January 30, 2011, June 6,
2011 or June 25, 2011.
Class B: All persons to whom defendants sent or caused to be sent an
unsolicited fax advertisement during the period or on the dates covered by
Class A.
Class C: All persons in Connecticut to whom, without having obtained
express invitation or permission, defendants sent or caused to be sent a
fax advertisement from June 1, 2012 through March 14, 2013 or on June
6, 2011 or June 25, 2011.
See Pls.‟ Mem. in Supp. of Pls.‟ Am. Mot. for Class Certification (“Pls.‟ Mem.”) (Doc. No.
61) at 19-20.5 Class A is defined to cover fax advertisements alleged to violate the
TCPA because of defective opt-out notices. Class B is defined to cover fax
advertisements alleged to violate the TCPA because they were unsolicited. Class C is
defined to cover fax advertisements alleged to violate section 52-570c of the
Connecticut General Statutes because they were sent to Connecticut recipients without
those recipients‟ express consent.
2.

Plaintiffs‟ Burden Under Rule 23

Certification of Classes A, B, and C is appropriate only if the court is satisfied,
“after a rigorous analysis,” that each proposed class meets the Rule 23(a) prerequisites.

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The class definitions here differ from those in the Complaint, in that plaintiffs have narrowed the
range of dates covered to conform to the records of defendants‟ fax activity produced by Data on Call. It
is well settled that courts may modify or subdivide classes as issues develop for trial. Woe by Woe v.
Cuomo, 729 F.2d 96, 107 (2d Cir. 1984). Hence, the court has addressed the propriety of certification on
the basis of these modified class definitions, as set forth in plaintiffs‟ Amended Motion for Class
Certification, Pls.‟ Mem. at 19-20, and not as set forth in the Complaint, Compl. ¶ 19.

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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011); see also In re Initial Pub.
Offerings Sec. Litig., 471 F.3d 24, 40 (2d Cir. 2006) [hereinafter “IPO”] (“[A] district court
may not grant class certification without making a determination that all of the Rule 23
requirements are met.”). Thus, Classes A, B, and C may proceed only if, for each
proposed Rule 23 class,
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class, (3) the claims
or defenses of the representative parties are typical of the claims or
defenses of the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
If the court determines that these threshold requirements—numerosity,
commonality, typicality, and adequacy of representation—are satisfied, Classes A, B,
and C must then qualify under one of the three Rule 23(b) criteria. In the instant case,
where certification is sought pursuant to Rule 23(b)(3), the court must determine that
“the questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
“The party seeking class certification bears the burden of establishing by a
preponderance of the evidence that each of Rule 23's requirements has been met.”
Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). A court must “receive enough
evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23
requirement has been met.” IPO, 471 F.3d at 41. In determining whether a putative
class meets the requirements of Rule 23, the court must resolve any factual disputes,
and find any facts relevant to this determination. Id. The court‟s obligation to make

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such determination “is not lessened by overlap between a Rule 23 requirement and a
merits issue, even a merits issue that is identical with a Rule 23 requirement.” Id.
3.

Implied Requirement of Ascertainability

Implied in Rule 23 is a requirement that there be a “class.” 7A Charles Wright et
al., Federal Practice and Procedure § 1760 (3d ed. 2005); see also IPO, 471 F.3d at 30
(referring to the “implied requirement of ascertainability”). But cf. Floyd v. City of New
York, 283 F.R.D. 153, 171 (S.D.N.Y. 2012) (“Rule 23 does not demand ascertainability.
The requirement is a judicial creation meant to ensure that class definitions are
workable when members of the class will be entitled to damages or require notice for
another reason.”). Although class members need not be ascertained prior to
certification, membership for a Rule 23(b)(3) class must be ascertainable at some point.
In re Methyl Tertiary Butyl Ether Products Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y.
2002). “An identifiable class exists if its members can be ascertained by reference to
objective criteria.” Id. (citation and internal quotation marks omitted). That is, “the class
description must be sufficiently definite so that it is administratively feasible for the
[c]ourt to determine whether a particular individual is a member of the proposed class.”
Mike v. Safeco Ins. Co. of Am., 223 F.R.D. 50, 53 (D. Conn. 2004). “This standard is
not a demanding one, but is designed only to prevent the certification of a class whose
membership is truly indeterminable.” Shady Grove Orthopedic Associates, P.A. v.
Allstate Ins. Co., 293 F.R.D. 287, 299 (E.D.N.Y. 2013) (citation and internal quotation
marks omitted).
Defendants argue that identifying members of Classes A, B, and C will require
mini-trials on the merits because, for any given recipient of a fax from the defendants,
class membership depends, first, on whether the fax qualifies as an advertisement and,
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second, on whether the recipient consented to receive fax advertisements or otherwise
had an established business relationship with the defendants. See Defs. Opp‟n to Pls.‟
Am. Mot. for Class Certification (“Defs.‟ Opp‟n”) (Doc. No. 75) at 21. The court
disagrees and determines that Classes A, B, and C are sufficiently ascertainable for
purposes of preliminary certification.
With respect to the content of the faxes, which implicates all three classes,
whether a given fax was an advertisement is ascertainable on the basis of the Directory,
the Outgoing Transactions Log, and the Outgoing Documents Log. In particular,
recipients of fax advertisements are reasonably identifiable in light of: (1) the contact
information in the Directory; (2) the series of repeated one- and two-page faxes to
persons in that Directory within minutes of one another; (3) the same documents sent to
multiple recipients on such occasions; (4) the descriptive file names of these
documents; and (5) the corresponding fax announcements concerning one of
defendants‟ mediation days. Defendant Earle testified, in fact, that the only mass faxes
sent out in this manner were faxes for mediation days, Earle Dep. 124: 22-125:2, and
that she had no alternative explanation for this pattern of outgoing faxes, id. 121:6-23.
Accordingly, members of Classes A, B, and C can be preliminarily ascertained by
reference to receipt of a mass fax sent by defendants during the period covered by the
respective class and, in the case of Class C, by reference to the Connecticut area code
of the fax number.
With respect to consent, which implicates Classes B and C, plaintiffs have put
forward evidence that defendants obtained attorneys‟ fax numbers for the Directory by a
variety of means, including directories from Martindale-Hubbell and CTLA, online

15

searches, insurance companies, claims adjusters, and prior relationships with
recipients. Pls.‟ Ex. C, Resp. to Interrog. No. 6; Earle Dep. 20:3-8, 39:25; 40:2-11. This
variety poses challenges to certification that are addressed by the court under the
inquiries into commonality, typicality, and predominance. See Parts III.B.4.b & III.B.5.a,
infra. As explained below, Classes B and C may be certified only as to persons whose
fax numbers the defendants obtained through the CTLA directory, which subclass
includes the named plaintiffs. While defendants‟ Directory and the CTLA directory are
not before the court, the former is in plaintiffs‟ possession, and the latter, if not already
in plaintiffs‟ possession, is easily discoverable. Hence, while the court itself has not
examined these databases, it sees no reason why the specified subclasses of Classes
B and C cannot be “reverse-engineered” by comparing the Directory, the CTLA
directory, and the Outgoing Transactions Log.
4.

Rule 23(a) Requirements
a.

Numerosity

“The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of
all parties be impossible—only that the difficulty or inconvenience of joining all members
of the class make use of the class action appropriate.” Cent. States Se. & Sw. Areas
Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 244-45
(2d Cir. 2007). Numerosity is presumed for a class in excess of forty members.
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). However,
“evidence of exact class size or identity of class members” is not required, Robidoux v.
Celani, 987 F.2d 931, 935 (2d Cir. 1993), and the court may rely on reasonable
inferences drawn from available facts, Noble v. 93 Univ. Place Corp., 224 F.R.D. 330,
338 (S.D.N.Y. 2004).
16

As to Class A, evidence supports that 5,577 mass faxes were sent, 4,102
between June 2012 and March 2013, 1,475 on the six additional dates on which
plaintiffs received such faxes. Pls.‟ Reply at 20. If not the same size as Class A, Class
B is in that ballpark. The most restrictive class, Class C, has at least 649 members.
As explained below, see Parts III.B.4.a & 5.b, infra, the court will certify Classes
B and C only as to persons whose fax numbers the defendants obtained through the
CTLA directory, because plaintiffs‟ claims are typical and entail common inquiries that
predominate over individual inquiries only relative to such persons. However, in this
connection, it bears noting that CTLA is not a small organization. See CTLA website,
http://www.cttriallawyers.org (“We are a fellowship of over 1,300 of Connecticut's most
accomplished and active lawyers.”). Thus, common sense suggests that restricting
Classes B and C to persons whose fax numbers were obtained through the CTLA
directory is unlikely to reduce the subclasses to be certified to sizes below the threshold
of forty.
b.

Commonality and Typicality

“The commonality and typicality requirements often „tend to merge into one
another, so that similar considerations animate analysis‟ of both.” Brown v. Kelly, 609
F.3d 467, 475 (2d Cir. 2010) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.
1997)). “The crux of both requirements is to ensure that maintenance of a class action
is economical and that the named plaintiff's claim and the class claims are so
interrelated that the interests of the class members will be fairly and adequately
protected in their absence.” Marisol A., 126 F.3d at 376 (citation, alterations, and
internal quotation marks omitted). Commonality requires that “plaintiffs' claims „depend
upon a common contention . . . capable of classwide resolution.‟” Cuevas v. Citizens
17

Fin. Grp., Inc., 526 F. App'x 19, 21 (2d Cir. 2013) (quoting Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011)). “Typicality requires that the claims or defenses
of the class representatives be typical of the claims or defenses of the class members.”
Brown, 609 F.3d at 475 (citing Fed. R. Civ. P. 23(a)(3)).
As to Class A, commonality and typicality are easily met. Defendants concede
that, where their mass faxes included a notice regarding how to opt out of receiving
future faxes, such notice was identical or substantially similar to the Opt-Out Notice
contained in the faxes received by plaintiffs. Pls.‟ Ex. C, Resp. to Interrog. No. 13.
Hence, whether the Opt-Out Notice was defective is a question dispositive of liability
and susceptible of being proven or disproven on a class-wide basis.
As to Classes B and C, however, the issue of consent is central, and proof of
consent will likely vary based on the source from which defendants obtained attorneys‟
fax numbers—whether directories from Martindale-Hubbell and CTLA, online searches,
insurance companies, claims adjusters, or prior relationships with recipients. Thus,
while consent poses a common question, which is determinative of liability as to both
classes, generalized proof is lacking.6 Cf. Hinman v. M & M Rental Ctr., Inc., 545 F.
Supp. 2d 802, 806-07 (N.D. Ill. 2008) (certifying class of recipients whose fax numbers

6

Whether consent is characterized as an element of plaintiffs‟ claim or an affirmative defense to it
does not alter the conclusion that generalized proof of plaintiffs‟ claims is unavailable as to Classes B and
C. Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 327 (5th Cir. 2008); see also Myers, 624 F.3d at 551
(noting that individualized issues necessary to decide affirmative defense may preclude certification). It
bears remarking that, in BioPay and Myers, the Fifth and Second Circuits addressed the affirmative
defenses at issue under Rule 23(b)(3)‟s predominance requirement. However, both cases were decided
prior to the Supreme Court‟s decision in Dukes. 131 S. Ct. at 2566-67 (Ginsburg, J., dissenting) (“The
Court blends Rule 23(a)(2)'s threshold criterion with the more demanding criteria of Rule 23(b)(3), and
thereby elevates the (a)(2) inquiry so that it is no longer „easily satisfied.‟ . . . If courts must conduct a
„dissimilarities‟ analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3).”). This court is
bound by Dukes, and in the wake of Dukes, this Circuit has likewise treated affirmative defenses on which
defendants' ultimate liability will depend as proper subjects of the inquiries into commonality and
typicality, as well as predominance. Authors Guild, Inc. v. Google Inc., 721 F.3d 132, 135 (2d Cir. 2013)
(citing, inter alia, Dukes).

18

were obtained from a singular source); Kavu, Inc., v. Omnipak Corp., 246 F.R.D. 642,
646 (W.D. Wash. 2007) (same). Unlike in Hinman and Kavu, defendants here had
recourse to different types of sources to create the Directory they used in sending out
mass faxes. Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 329 (5th Cir. 2008)
(reversing certification of class of recipients whose fax numbers defendant culled from
various sources over time). Accordingly, whether defendants ever obtained recipients‟
consent, or obtained consent from certain sets of recipients and not others, will entail
separate inquiries into these heterogeneous sources. Furthermore, while
corresponding subclasses might be devised, plaintiffs‟ claims and the arguments for and
defenses to them are typical only of recipients whose fax numbers were likewise
obtained through the CTLA directory.
For those reasons, the lack of commonality and typicality precludes certification
of Classes B and C as presently drawn. In the court‟s view, however, the Rule 23(a)
requirements of commonality and typicality are satisfied as to persons like plaintiffs
whose fax numbers defendants obtained through the CTLA directory. With respect to
such persons, the question of whether listing one‟s number constitutes consent to
receive fax advertisements is central to each person‟s claims and amenable to classwide resolution. Indeed, plaintiffs identify this question as one that is common to
Classes B and C. Pls.‟ Mem. at 23-24. In so doing, plaintiffs have advanced “a viable
theory employing generalized proof to establish liability,” albeit not as to Classes B and
C as a whole, but only as to the narrowly drawn subclasses, as to which common
issues exist, and of which plaintiffs‟ claims and the possible defenses to them are, in
fact, typical. BioPay, 541 F.3d at 328.

19

Hence, with respect to Classes B and C, because commonality and typicality are
met only as to members like plaintiffs whose fax numbers were obtained through the
CTLA directory, the court will consider whether certification of these subclasses of
Classes B and C is proper.
c.

Adequacy of Representation

In determining the adequacy of representation, courts seek to ensure (1) that the
named plaintiffs‟ interests are not antagonistic to the interests of other class members
and (2) that plaintiffs‟ counsel is qualified, experienced, and able to conduct the
litigation. Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99
(2d Cir. 2007). There is no question that plaintiffs‟ attorneys are well-qualified to
prosecute this case. Defendants question only whether plaintiffs‟ interests are
antagonistic to those of other class members, arguing that plaintiffs have failed to show
other class members did not desire to receive faxes regarding defendants‟ services.
Defs.‟ Opp‟n at 22-23.
This argument is meritless, however. First, plaintiffs have no burden to make
such a showing. Second, Rule 23(a)‟s adequacy requirement is meant to ensure
zealous advocacy for the class, not the opposite. Latino Officers Ass'n City of New York
v. City of New York, 209 F.R.D. 79, 90 (S.D.N.Y. 2002). That defendants are worried
plaintiffs will zealously prosecute this case supports rather than refutes adequacy.
Whatever personal interest other class members may have in not prosecuting their own
TCPA claims, such interest is not one to which plaintiffs‟ interest in vindicating claims
common to the class can be characterized as “antagonistic” under Rule 23(a)(4).
As to Class A, all evidence suggests that plaintiffs‟ interests are aligned with
those of the class. As to Classes B and C, it is always possible that plaintiffs‟ claims are
20

subject to a defense based on listing their fax number in the CTLA directory. Whether
such defense might render plaintiffs‟ interests antagonistic to those of other members of
Classes B and C as originally drawn is, however, speculative. At this point, there is no
evidence of defenses unique to plaintiffs which would render them ineffective class
representatives. On the contrary, the record unequivocally indicates plaintiffs‟ strong
interest in prosecuting the claims of Classes B and C, as of Class A. Moreover, as
limited to members whose fax numbers were obtained through the CTLA directory, see
Part III.B.4.b, supra, Classes B and C suffer no possible defect from the fact that the
lead plaintiffs listed their number in that same directory. Indeed, that is what makes
plaintiffs typical of these subclasses.
In sum, the court finds that adequacy and the other Rule 23(a) requirements are
met with respect to Class A and with respect to the subclasses of Classes B and C
comprising the respective class members whose fax numbers, like plaintiffs‟, were
obtained through the CTLA directory.
5.

Rule 23(b)(3) Requirements
a.

Predominance

In addition to satisfying the four requirements of Rule 23(a), to qualify under Rule
23(b)(3), plaintiffs must show that, for each proposed class, “the questions of law or fact
common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “The Rule 23(b)(3)
predominance inquiry tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S.
591, 623 (1997). Although similar to commonality, predominance is “more demanding”
21

and “requires not only that there be disputed issues that can be resolved through
„generalized proof,‟ but also that „these particular issues are more substantial than the
issues subject only to individualized proof.‟” Damassia v. Duane Reade, Inc., 250
F.R.D. 152, 159 (S.D.N.Y. 2008) (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247,
1252 (2d Cir. 2002)).
As to Class A, the court determines that those questions central to liability and
common to the class—namely, whether recipients received a fax advertisement,
whether it contained defective notice regarding how to opt out from receiving future fax
advertisements, and whether class members are entitled to statutory damages based
on such defective notice—will predominate over any questions pertaining only to
individual class members. Indeed, the issue of whether the faxes were solicited or
unsolicited is irrelevant to this class, as is the issue of whether defendants had an
“established business relationship” with class members. 47 U.S.C. § 227(b)(1)(C)
(exempting sender from liability for unsolicited fax advertisements to recipients with
such relationship only if advertisement contains required opt-out notice). Hence, the
fact that the defendants obtained fax numbers from multiple sources, some of which
may involve recipients‟ consent to the receipt of fax advertisements from defendants,
has no bearing on the claims of Class A members. See Vandervort v. Balboa Capital
Corp., 287 F.R.D. 554, 562 (C.D. Cal. 2012) (certifying similar class); A Aventura
Chiropractic Ctr., Inc. v. Med Waste Mgmt. LLC, No. 12-21695-CIV, 2013 WL 3463489,
at *4 (S.D. Fla. July 3, 2013) (same).
As to Classes B and C, consent is central to the claim, and the lack of
commonality and typicality—let alone predominance—precludes certification of these

22

two classes as originally drawn. However, as limited to persons whose fax numbers
defendants obtained through the CTLA directory, the court determines that common
questions will predominate and that these subclasses are “sufficiently cohesive to
warrant adjudication by representation.” Amchem, 521 U.S. at 623.
Of course, with respect to the specified subclasses, it is still possible that some
recipients‟ fax numbers were obtained through multiple sources rather than the CTLA
directory alone. Such recipients‟ claims may be subject to separate defenses on that
basis. However, the mere possibility that some class members have claims subject to
separate defenses is not a reason to deny certification. Hinman, 545 F. Supp. 2d at
807; cf. Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903
F.2d 176, 180 (2d Cir.1990) (“While it is settled that the mere existence of individualized
factual questions with respect to the class representative's claim will not bar class
certification, class certification is inappropriate where a putative class representative is
subject to unique defenses which threaten to become the focus of the litigation.”
(citations and internal quotation marks omitted)). Moreover, although there is evidence
that defendants used different sources, Pls.‟ Ex. C, Resp. to Interrog. No. 6, as well as
evidence that some recipients invited fax communications from the defendants, Earle
Dep. 110:4-22, the record contains no evidence of overlap between the sources used to
compile defendants‟ Directory. Cf. Meyer v. Portfolio Recovery Associates, LLC, 707
F.3d 1036, 1042 (9th Cir. 2012), cert. denied, 133 S. Ct. 2361 (U.S. 2013) (affirming
provisional certification of class absent evidence of need for individualized inquiries
based on consent).

23

Hence, predominance is satisfied not only as to Class A, but also as to the
identified subclasses of Classes B and C. With respect to the specified subclasses of
Classes B and C, individual issues, if any, are merely speculative and insufficient to
undermine the predominance of the questions otherwise central to liability and common
to these subclasses.
b.

Superiority

In assessing whether “a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy,” Rule 23(b)(3) directs courts to
consider:
(A) the class members' interests in individually controlling the prosecution
or defense of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (D) the likely difficulties in managing a
class action.
Fed. R. Civ. P. 23(b)(3). Superiority is often met where class members‟ claims would
be too small to justify individual suits, and a class action would save litigation costs by
permitting the parties to assert their claims and defenses in a single proceeding.
Amchem, 521 U.S. at 617 (noting that “the Advisory Committee had dominantly in mind
vindication of the rights of groups of people who individually would be without effective
strength to bring their opponents into court at all.”); Jermyn v. Best Buy Stores, L.P.,
256 F.R.D. 418, 436-37 (S.D.N.Y. 2009).
Here, the various Rule 23(b)(3) factors favor certification. First, class members
have little or no interest in individually prosecuting separate actions. Given the modest
statutory damages, individuals are unlikely to sue on their own, and given that the
relevant provisions are less than a decade old, class members may even “be unaware
24

of their legal rights.” See Kavu, 246 F.R.D. at 650. Second, and relatedly, there is no
indication of other TCPA actions against these defendants. Bellin Decl. ¶ 8. Thus, the
present case will not interfere with pending litigation in other forums. Third, the
corresponding state-law claims make suit in the instant forum desirable. Lastly, there
are no potential difficulties in managing this case as a class action apart from the
speculative need for individualized inquiries, which need the court has already
addressed in connection with commonality, typicality, and predominance and
determined to be unsupported by the record. See Parts III.B.3, III.B.4.b & III.B.5.a,
supra.
The parties‟ principal arguments for and against superiority are policy-based. In
the court‟s view, such arguments likewise favor certification. Relying heavily on Forman
v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995), defendants argue that class
actions are inappropriate under the TCPA in general, and that defendants‟ potential
liability will be grossly disproportionate to the actual harm to class members. See Defs.‟
Opp‟n at 26-29. Neither argument is availing.
As to the appropriateness of TCPA class actions, certainly there is no per se bar
to resolving large numbers of TCPA claims by means of Rule 23. BioPay LLC, 541
F.3d at 328. While the availability of minimum statutory damages awards for violations
already incentivizes private enforcement to some extent, the amount ($500) is still
sufficiently modest relative to the burdens of litigation that suits would doubtless rarely
be brought but for the possibility of aggregating similar claims. Moreover, forcing
claimants to sue separately would only serve to waste scarce judicial resources.
Hinman, 545 F. Supp. 2d at 807 (“[R]esolution of the issues on a classwide basis, rather

25

than in thousands of individual lawsuits (which in fact may never be brought because of
their relatively small individual value), would be an efficient use of both judicial and party
resources.”). In other words, reliance on statutory damages awards alone to motivate
individual litigants would lead to one of two suboptimal results—either “needlessly
clogging the courts with repetitious suits if many are filed, or rewarding some law
violators with liability for only a slight amount of total damages if, as seems more likely,
few suits are filed.” Parker v. Time Warner Entm't Co., L.P., 331 F.3d 13, 26 (2d Cir.
2003) (Newman, J., concurring).
As to the potential enormity of statutory damages, there may be a due process
issue. Id. at 22 (majority opinion).7 Even in a truly serious case, however, the remedy
is not to decertify the class but to reduce the award. Id. And, in the instant case, there
is as yet no liability, let alone damages. The proportionality of damages to the actual
injury suffered by class members is, therefore, not properly before the court. For
purposes of certification, the question is not the size of hypothetical damages. The
question is whether issues related to plaintiffs‟ claims are better resolved on a classwide basis. Because the court concludes that they are, and that the requirements of
Rule 23 are met as to Class A and the narrowly drawn subsclasses of Classes B and C,
certification of these classes is proper.

7

The court is mindful that, just as many potential TCPA claimants may not sue out of ignorance
of their legal rights, Kavu, 246 F.R.D. at 650, many TCPA violations may well arise out of ignorance of
what the law requires. However, Congress has given courts discretion to take account of pertinent
differences among violations in awarding damages. See 47 U.S.C. § 227(b)(3) (“If the court finds that the
defendant willfully or knowingly violated this subsection or the regulations prescribed under this
subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not
more than 3 times the amount [of actual or statutory damages, whichever is greater].”).

26

6.

Class Counsel

Where the court certifies a class under Rule 23, the court must appoint class
counsel. In appointing counsel, the court must consider:
(i) the work counsel has done in identifying or investigating potential
claims in the action; (ii) counsel's experience in handling class actions,
other complex litigation, and the types of claims asserted in the action; (iii)
counsel's knowledge of the applicable law; and (iv) the resources that
counsel will commit to representing the class.
Fed. R. Civ. P. 23(g)(1)(A). In light of the extensive work already done on this matter by
plaintiffs‟ counsel, Attorneys Aytan Y. Bellin and Roger Furman, in light of their obvious
expertise and experience in this area of the law, and in the absence of any objection
from the defendant, the court determines that appointment of plaintiffs‟ counsel as class
counsel is appropriate.
IV.

CONCLUSION
For the reasons set forth above, the court GRANTS plaintiffs‟ Amended Motion

for Class Certification (Doc. No. 58) and DENIES defendants‟ Motion to Dismiss (Doc.
No. 75). Class A and subclasses of Classes B and C are hereby CERTIFIED as
defined below.
“Class A” shall consist of all persons to whom defendants sent or caused to be
sent a fax advertisement containing a notice identical or substantially similar to the OptOut Notice from June 1, 2012 through March 14, 2013, or on October 17, 2010, January
14, 2011, January 22, 2011, January 30, 2011, June 6, 2011 or June 25, 2011.
“CTLA Class B” shall consist of all persons whose fax numbers defendants
obtained through the CTLA directory and to whom defendants sent or caused to be sent
an unsolicited fax advertisement from June 1, 2012 through March 14, 2013, or on

27

October 17, 2010, January 14, 2011, January 22, 2011, January 30, 2011, June 6, 2011
or June 25, 2011.
“CTLA Class C” shall consist of all persons in Connecticut whose fax numbers
defendants obtained through the CTLA directory and to whom, without having obtained
express invitation or permission, defendants sent or caused to be sent a fax
advertisement from June 1, 2012 through March 14, 2013 or on June 6, 2011 or June
25, 2011.
Lead plaintiffs Roger H. Kaye and Roger H. Kaye, MC PC are hereby
APPOINTED as class representatives of each class. Plaintiffs‟ counsel, Attorneys
Aytan Y. Bellin and Roger Furman, are hereby APPOINTED as class counsel for each
of the three classes.
SO ORDERED.
Dated at New Haven, Connecticut this 27th day of May, 2014.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

28