Brey Corp. v. LQ Management, LLC
Filing
68
MEMORANDUM. Signed by Judge J. Frederick Motz on 1/29/2014. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BREY CORP. (t/a HOBBY WORKS)
v.
LQ MANAGEMENT LLC
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Civil No. – JFM-11-718
MEMORANDUM
Plaintiff has filed a motion for class certification. The motion will be denied.1
The parties have devoted much of their briefing to the question of the extent to which
plaintiff, on behalf of the putative class, is able to identify the members of the putative class, i.e.,
persons who received unsolicited faxes from defendant. There is no reason for me to address the
parties’ respective positions on that question in light of the fact that it is undisputed that plaintiff
cannot identify the class and requests that I send notices to potential members of the class.
I recognize that if the class were certified, defendant’s liability would not be greater than
the award of statutory damages to persons to whom it sent unsolicited faxes. I also accept the
fact that the potential class probably includes most of the people to whom unsolicited faxes were
sent and probably does not include a substantial number of persons to whom unsolicited faxes
were not sent. I am satisfied, however, that under the circumstances of this case it would not be
proper to certify the class requested by plaintiff because it cannot be properly ascertained.
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Defendant has filed a motion to exclude the testimony and opinions of plaintiff’s expert, Robert
B. Biggerstaff. I assume that Mr. Biggerstaff, despite his strong bias in favor of plaintiff’s
position, is competent as an expert to testify. I also accept the opinions that he has expressed.
Accordingly, there is no need to decide the issues raised by defendant’s motion, and it is denied
as moot.
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I start with the proposition that as a general rule a class should be certified before class
notices are sent. See generally Carrera v. Bayer Corp., 727 F.3d 300 (3rd Cir. 2013). My ruling
denying class certification here does not, however, depend upon the application of a black-letter
rule. There may be circumstances under which the class process itself might be used to ascertain
the class. However, those circumstances do not exist here.
First, the members of the putative class have standing to assert a claim against defendant
only if they received an unsolicited fax. There are no objective criteria that establish that a
putative class member in fact obtained an unsolicited fax. A putative class member would be
able to establish his, her, or its standing only by submitting an affidavit that he, she, or it had
received the unsolicited fax. Perhaps there are cases in which it would be appropriate for such
affidavits to be submitted as part of the claims administration process. Our system of justice is
based upon the premise, however, that in order for a plaintiff to recover, he or she must prove to
the satisfaction of the factfinder, after being cross-examined, that she, he, or it is entitled to the
relief sought. Cf. Fed. Civ. P. 56.2
Second, the unsolicited faxes in question were sent in 2007-2008. Therefore, the
recollection of a putative class member that he, she, or it had received a particular unsolicited fax
would be somewhat suspect.
Third, plaintiff seeks statutory damages on behalf of itself and the putative class
members. The apparent purpose of the statutory damages is to deter the sending of unsolicited
faxes. In light of the number of class actions that have been instituted (in part, because of the
advocacy of plaintiff’s expert) under the Telephone Consumer Protection Act, it would not seem
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It may be also that a class member would have to prove that it is the person or entity that owned
the fax machine that received the unsolicited advertisement in order to have standing. See, e.g.,
Compressor Eng. Corp. v. Manufacturers Fin. Corp., 213 W.L. 1789273 (E.D. Mich., April 26,
2013). That is another issue that I need not reach.
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that class certification of this action is necessary to serve the interest of general deterrence. As
for specific deterrence, nothing in the record suggests that defendant continues to engage in the
sending of unsolicited faxes.
Fourth, this is not a case involving a case of particularly vulnerable consumers. Although
plaintiff refers to the putative class members as “consumers,” it appears that they include many
businesses.
Fifth, the provenance of this litigation is somewhat suspect. Plaintiff’s counsel entered
into a retainer agreement with plaintiff not because plaintiff was aggrieved by an unsolicited fax
that it received. Instead, the retainer agreement provided that plaintiff was to send to plaintiff’s
counsel any unsolicited fax it received so that plaintiff’s counsel could determine whether a
violation of the Telephone Consumer Protection Act had occurred.
Finally, it must be remembered that Rule 23 is a procedural rule designed to assist courts
in serving their fundamental function of resolving actual disputes in a fair, efficient, and effective
manner. It is not intended to convert courts into vehicles for effecting legislatively declared
policy absent the existence of a genuine underlying dispute. Whether such a dispute exists is
manifested by the institution of a law suit by a party who believes herself, himself, or itself to be
aggrieved by the conduct of someone else.
A separate order effecting the ruling made in this memorandum is being entered
herewith.
Date: January 29, 2014
/s/
J. Frederick Motz
United States District Judge
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