HAWK VALLEY, INC. v. TAYLOR et al

Filing 141

OPINION. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 3/31/14. 4/1/14 ENTERED AND COPIES E-MAILED.(er, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HAWK VALLEY, INC., a Pennsylvania
Corporation, Individually and as the
Representative of a Class of Similarly
Situated Persons,
Plaintiff
v.
ELAINE G. TAYLOR, and
ENVIRONMENTAL PROCESS SYSTEMS, INC.,
Defendants
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Civil Action
No. 10-cv-00804

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APPEARANCES:
ALAN C. MILSTEIN, ESQUIRE
BRIAN J. WANCA, ESQUIRE
PHILLIP A. BOCK, ESQUIRE
On Behalf of Plaintiff
FRANCIS J. DEASEY, ESQUIRE
ATHENA O. PAPPA, ESQUIRE
On Behalf of Defendant Elaine G. Taylor
ERIC J. SAMORE, ESQUIRE
THOMAS F. REILLY, ESQUIRE
ALLAN SCHOLLER, ESQUIRE
On Behalf of Defendant Environmental Process
Systems, Inc.
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O P I N I O N
JAMES KNOLL GARDNER
United States District Judge

TABLE OF CONTENTS
Page
SUMMARY OF DECISION............................................ 4
JURISDICTION................................................... 5
VENUE.......................................................... 5
PROCEDURAL HISTORY............................................. 5
STANDARD OF REVIEW............................................ 10
Federal Rule of Civil Procedure 23 .......................... 10
Telephone Consumer Protection Act ........................... 13
FACTS......................................................... 16
Parties ..................................................... 16
Business to Business Solutions .............................. 18
InfoUSA ..................................................... 19
June 17, 2006 Fax Advertisement ............................. 20
CONTENTIONS OF THE PARTIES.................................... 22
Contentions of Plaintiff .................................... 22
Rule 23(a) Requirements ................................... 22
Rule 23(b)(3) Requirements ................................ 23
Contentions of Defendants ................................... 24
Rule 23(a) Requirements ................................... 24
Rule 23(b)(3) Requirements ................................ 27
Predominance............................................. 27
Superiority.............................................. 30
Alternative Definition of Class ........................... 30
Defendants’ Supplemental Briefs ........................... 31
DISCUSSION.................................................... 32
Rule 23(a) Requirements ..................................... 32
Numerosity ................................................ 32
Commonality ............................................... 32
Typicality ................................................ 34
Adequacy .................................................. 35
Class Counsel............................................ 35
Class Representative..................................... 37
Rule 23(b)(3) Requirements .................................. 40
Predominance .............................................. 40
Scope of Authority....................................... 48
Opt-Out-Notice Dispute................................... 50
Superiority ............................................... 57
CONCLUSION.................................................... 58

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This matter is before the court on Plaintiff’s Motion
for Class Certification filed July 19, 2013.1

For the reasons

expressed below, I grant the motion for class certification. 1

1

Plaintiff’s Motion for Class Certification (Document 98) was
filed together with
(A)

Brief in Support of Plaintiff’s Motion for Class Certification
(Document 98-1)(“Hawk Valley Brief”); and

(B)

Exhibits A through R to Plaintiff’s Motion for Class Certification (Documents 98-2 through 98-24).

On August 16, 2013, Defendant Elaine G. Taylor’s Answer in
Opposition to Plaintiff’s Motion for Class Certification was filed (Document 100)(“Taylor Answer to Motion”), together with
(A)

Defendant Elaine G. Taylor’s Brief in Opposition to Plaintiff’s
Motion for Class Certification (“Taylor Brief”)(Document 100-1);
and

(B)

Exhibits A through H to the Taylor Answer (Documents 100-3
through 100-11).

Also on August 16, 2013, Defendant, Environmental Process
Systems, Inc.’s Response in Opposition to Plaintiff’s Motion for Class
Certification was filed (Document 101)(“EPSI Response to Motion”), together
with
(A)

Memorandum of Law in Support of Defendant, Environmental Process
Systems, Inc.’s Response in Opposition to Plaintiff’s Motion for
Class Certification (“EPSI Memorandum”)(Document 101-3); and

(B)

Exhibits A through N to the EPSI Response to Motion (Documents 101-4 through 101-25).

On November 7, 2013, with leave of court, Defendant, Elaine G.
Taylor’s Supplemental Brief in Further Support of Her Response in Opposition
to Class Certification was filed (“Taylor Supplemental Brief”)(Document 117),
together with
(A)

Exhibits A and B to Taylor Supplemental Brief (Documents 117-1
and 117-2).

Also on November 7, 2013, with leave of court, Defendant,
Environmental Process Systems, Inc.’s Supplemental Brief in Further Support
of Its Response in Opposition to Class Certification was filed (“EPSI
Supplemental Brief”)(Document 119), together with
(A)

Exhibits A and B to EPSI Supplemental Brief (Documents 119-1 and
119-2).
(Footnote 1 continued):

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SUMMARY OF DECISION
The within matter is a putative class action in which
plaintiff Hawk Valley, Inc. (“Hawk Valley”) asserts a claim, on
its own behalf and on behalf of all others similarly situated,
against defendants Elaine G. Taylor and Environmental Process
Systems, Inc. (“EPSI”) for sending an unsolicited facsimile
advertisement to plaintiff and the putative class members on
June 17, 2006 in violation of the federal Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. 227.
In the within motion, plaintiff seeks to certify a
class defined as “All persons sent one or more faxes on June 17,
2006 from ‘Environmental Process Systems, Inc.’ that advertised
‘EPSI’s Grass Grab-er’ as a ‘New way to treat your equipment
wash water.’” 2

Plaintiff requests the court to appoint it as the

class representative and its attorneys, whose appearances are
listed above, as class counsel.
Because plaintiff has demonstrated that the four
requirements necessary for class certification under Rule 23(a)
of the Federal Rules of Civil Procedure, and the two requirements necessary for class certification under Rule 23(b)(3) are

(Continuation of footnote 1):
On November 8, 2013, a class certification hearing in the
within action was held before me and, as described further in the Procedural
History section below, the parties submitted additional materials concerning
class certification following the November 8, 2013 hearing.
2

Plaintiff’s Motion for Class Certification at page 1.

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each satisfied here, I grant plaintiff’s motion and certify the
class.
JURISDICTION
Jurisdiction in this case is based upon federal
question jurisdiction pursuant to 28 U.S.C. § 1331 and upon the
Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).
VENUE
Venue is proper because the events giving rise to
plaintiff’s claim allegedly occurred in the Borough of Denver,
Lancaster County, Pennsylvania, which is within this judicial
district.

See 28 U.S.C. §§ 118 and 1391(b)(2).
PROCEDURAL HISTORY
Plaintiff initiated this putative class action on

February 24, 2010 by filing its Class Action Complaint (“Class
Complaint”). 3

On June 17, 2010 Defendants, Elaine G. Taylor and

Environmental Process Systems, Inc.’s Motion to Dismiss
Plaintiff’s Complaint with Prejudice Pursuant to Fed.R.Civ.P.
12(b)(6) 4 was filed.
On February 28, 2011 I issued an Order and accompanying Opinion 5 dismissing plaintiff's Class Complaint with leave to

3

Document 1.

4

Document 12.

5

Documents 35 and 34, respectively.

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file an amended complaint establishing this court's subject
matter jurisdictions.
On March 25, 2011 plaintiff filed a First Amended
Class Action Complaint 6 (“Amended Class Complaint”).

On

April 14, 2011 Defendants, Elaine G. Taylor and Environmental
Process Systems, Inc.’s Motion to Dismiss Plaintiff’s First
Amended Complaint with Prejudice Pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6) 7 was filed.
On March 30, 2012 I issued an Order and accompanying
Opinion 8 denying defendants’ motion to dismiss plaintiff’s
Amended Class Complaint.

Defendants, Elaine G. Taylor and

Environmental Process Systems, Inc.’s Answer and Affirmative
Defenses to Plaintiff’s First Amended Complaint 9 was filed on
April 16, 2012.
I conducted a status conference pursuant to Rule 16 of
the Federal Rules of Civil Procedure by telephone conference
call on August 23, 2012.

The parties did not submit (separately

or together) a report, or reports, of a pre-status-conference
meeting prior to the August 23, 2012 status conference (as
required by Rule 26(f) of the Federal Rules of Civil Procedure).

6

Document 36.

7

Document 37.

8

Documents 44 and 43, respectively.

9

Document 45.

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Because the parties were unable to reach an agreement at the
August 23, 2012 conference, I directed the parties at the status
conference to exchange the mandatory self-executing discovery
disclosures require by Rule 26(a), and to submit a proposed
discovery plan as required by Rule 26(f) on or before August 31,
2012.

I also scheduled a second status conference for Septem-

ber 10, 2012. 10
The parties were unable to agree upon a proposed
schedule and structure concerning this matter, and on August 24,
2012, plaintiff and defendants submitted separate proposed case
management plans. 11
Upon consideration of the parties proposed plans, I
established, among other dates and deadlines, a June 21, 2013
deadline for completion of all class discovery, and a July 19,
2013 deadline for plaintiff to file a motion seeking class
certification pursuant to Rule 23 of the Federal Rules of Civil
Procedure.
On April 9, 2013 Defendant Elaine G. Taylor’s Motion
for Summary Judgment was filed, seeking summary judgment in her
favor and against plaintiff on its claim against her in this

10

See Rule 16 Status Conference Order of the undersigned dated
August 23, 2012 and filed August 27, 2012 (Document 57).
11

Documents 56 and 55, respectively.

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matter. 12

On April 22, 2013 defendant Taylor filed a Motion for

Leave to File Late Third Party Complaint. 13
Plaintiff’s Motion for Class Certification was filed
on July 19, 2013, together with supporting materials. 14

Defen-

dants Taylor and EPSI each filed opposition documents in
response to the motion for class certification on August 16,
2013. 15
On September 25, 2013 Defendant, Environmental Process
Systems, Inc.’s Motion to Dismiss For Lack of Subject Matter
Jurisdiction Pursuant to Fed.R.Civ.P. 12(b)(1) was filed.

On

September 26, 2013 Defendant, Elaine G. Taylor’s Motion to
Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule
12(b)(1) was filed.

16

I denied each defendant’s respective motion to dismiss
by (and for the reasons expressed in) my Order dated October 29,
2013 and filed October 30, 2013. 17

I denied defendant Taylor’s

motion to file a late third-party complaint by (and for the
reasons expressed in) separate Order dated October 29, 2013 and
12

Document 84.

13

Document 88.

14

See footnote 1, supra.

15

Defendants each filed supplemental materials in opposition to
class certification with leave of court on November 7, 2013, in advance of
the class certification hearing. See footnote 1, supra.
16

Documents 105 and 106, respectively.

17

Document 108.

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filed October 30, 2013. 18

I denied defendant Taylor’s motion for

summary judgment by (and for the reasons expressed in) an Order
dated and filed November 7, 2013. 19
I held a hearing on Plaintiff’s Motion for Class
Certification on November 8, 2013.

At the class certification

hearing, each party moved -- and in the absence of objection the
court received -- in evidence the exhibits upon which each
intended to rely in support of their respective positions
concerning class certification. 20

The parties, through counsel,

then made closing arguments in support of their respective
positions concerning the issue of class certification.

At the

conclusion of the hearing, I took the matter under advisement.
18

Document 109.

19

Document 115.

20

The various exhibits introduced in evidence by the parties at the
November 8, 2013 hearing were among (and in the case of defendant Taylor, all
of) the exhibits filed by the parties together with the moving and opposition
documents in advance of the class certification hearing. Accordingly, the
document numbers for the hearing exhibits below correspond to the docket
entry where each of the hearing exhibits is located and can be accessed on
the electronic docket in this matter.

Specifically, plaintiff admitted in evidence Plaintiff’s Exhibits
A through E (Documents 98-2 through 98-6, respectively); Plaintiff’s Exhibit G (Documents 98-10 through 98-13); and Plaintiff’s Exhibit H (Document 100-11).
Defendant EPSI admitted in evidence EPSI Exhibits B and C
(Documents 101-5 and 101-6, respectively); EPSI’s Exhibits F through J
(Documents 101-9 through 101-13, respectively); EPSI Exhibit K (Documents
101-14 through 101-20); EPSI Exhibit L (Document 101-21); and EPSI Exhibits
N-1 through N-3 (Documents 101-23 through 101-25, respectively).
Finally, defendant Taylor admitted in evidence Taylor Exhibits A
through C (Documents 100-3 through 100-5, respectively); Taylor Exhibit D
(Documents 100-6 and 100-7); and Taylor Exhibits E through H (Documents 100-8
through 100-11, respectively).

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At the November 8, 2013 hearing, counsel for each
defendant requested seven days to submit a joint memorandum of
law concerning an issue which arose during argument at the
hearing.

I granted that request and gave defendants until

November 15, 2013 to file a joint memorandum.

I gave plaintiff

until November 22, 2013 to file a response to the joint
memorandum to be filed by defendants.

Defendants’ joint

memorandum and plaintiff’s response were timely filed on those
dates. 21
Additionally, while this matter has been under
advisement following the November 8, 2013 hearing, plaintiff and
defendants sought, 22 and I issued Orders granting, 23 leave to
present additional case law which they contend is pertinent to
the issue of class certification in this matter.
Hence this Opinion.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 23
Rule 23 of the Federal Rules of Civil Procedure
contains the prerequisites for class certification.

Wal–Mart

Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2548,
180 L.Ed.2d 374 (2011).

A class may be certified only if the

21

Documents 122 and 123, respectively.

22

Documents 124, 129, 131, 136, and 138.

23

Documents 126, 134, 135, 137, and 140.

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court is satisfied after a “rigorous analysis” that the
prerequisites of Rule 23 have been satisfied. Beck v. Maximus,
Inc., 457 F.3d 291, 296 (3d Cir. 2006).
To obtain class certification, plaintiffs must
establish that each requirement of Rule 23(a) is met, together
with one of the requirements of Rule 23(b).

Baby Neal v. Casey,

43 F.3d 48, 55 (3d Cir. 1994).
Pursuant to Rule 23(a), a class may be certified only
if:
(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 requirements of Rule 23(a) are satisfied,
Rule 23(b) sets forth the types of class actions which may be
maintained.
In this case, plaintiff moves for class certification
pursuant to Rule 23(b)(3).

Rule 23(b)(3) provides that a class

may not be certified unless the court finds that the questions
of law or fact common to the members of the class predominate

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over any questions affecting only individual members, and that a
class action is superior to other available methods for the fair
and efficient adjudication of the controversy. 24
Accordingly, the requirements of Rule 23(b)(3) are
known as predominance and superiority.

In re: Hydrogen Peroxide

Antitrust Litigation, 552 F.3d 305, 310 (3d Cir. 2008).
In deciding whether the requirements of Rule 23 have
been met to certify a class, the district court must make
whatever factual and legal inquiries necessary and must consider
all relevant evidence and arguments.

Id. at 307.

The requirements set forth in Rule 23 are not “mere
pleading rules” and the court must “delve beyond the pleadings
to determine whether the requirements for class certification

24

Specifically, Rule 23(b)(3) provides that a class action may be
maintained if the requirements of Rule 23(a) are met and:
(3) the court finds 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. The matters
pertinent to these findings include:
(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).

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are satisfied.”

In re: Hydrogen Peroxide Antitrust Litigation,

552 F.3d at 316.
Accordingly, a court must resolve all factual or legal
disputes relevant to class certification, even if they overlap
with the merits –- including disputes touching on elements of
the cause of action.

Id. at 307.

Factual determinations

supporting Rule 23 findings must be made by a preponderance of
the evidence.

Id.
Telephone Consumer Protection Act

In the within matter, plaintiff alleges that
defendants violated the provision of the Telephone Consumer
Protection Act governing advertisements sent by facsimile,
47 U.S.C. § 227(b)(1)(C), which provides that
It shall be unlawful for any person within the United
States, or any person outside the United States if the
recipient is within the United States -*

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(C) to use any telephone facsimile machine, computer,
or other device to send, to a telephone facsimile
machine, an unsolicited advertisement, unless -(i) the unsolicited advertisement is from a
sender with an established business relationship
with the recipient;
(ii) the sender obtained the number of the
telephone facsimile machine through -(I) the voluntary communication of such
number, within the context of such estab-

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lished business relationship, from the
recipient of the unsolicited advertisement,
or
(II) a directory, advertisement, or site on
the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution,
except that this clause shall not apply in the
case of an unsolicited advertisement that is sent
based on an established business relationship
with the recipient that was in existence before
July 9, 2005, if the sender possessed the
facsimile machine number of the recipient before
such date of enactment; and
(iii) the unsolicited advertisement contains a
notice meeting the requirements under paragraph
(2)(D),
except that the exception under clauses (i) and (ii)
[to the prohibition on unsolicited advertisements]
shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a
sender to whom a request has been made not to send
future unsolicited advertisements to such telephone
facsimile machine that complies with the requirements
under paragraph (2)(E)[.]
47 U.S.C. § 227(b)(1).
The TCPA defines “unsolicited advertisement” as “any
material advertising the commercial availability or quality of
any property, goods, or services which is transmitted to any
person without that person's prior express invitation or
permission, in writing or otherwise.”
47 U.S.C. § 227(a)(5).

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The TCPA provides that, “for purposes only of
subsection (b)(1)(C)(i)” of section 227, the term “established
business relationship”
shall have the meaning given the term in section
64.1200 of title 47, Code of Federal Regulations, as
in effect on January 1, 2003, except that -(A) such term shall include a relationship
between a person or entity and a business
subscriber subject to the same terms applicable
under such section to a relationship between a
person or entity and a residential subscriber;
and
(B) an established business relationship shall be
subject to any time limitation established
pursuant to paragraph (2)(G).
47 U.S.C.A. § 227(a)(2).
The regulations promulgated by the Federal
Communication Commission (“FCC”) provide that
[t]he term established business relationship means a
prior or existing relationship formed by a voluntary
two-way communication between a person or entity and a
residential subscriber with or without an exchange of
consideration, on the basis of the subscriber's
purchase or transaction with the entity within the
eighteen (18) months immediately preceding the date of
the telephone call or on the basis of the subscriber's
inquiry or application regarding products or services
offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either
party.
47 C.F.R. § 64.1200(f)(3).

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FACTS
Upon consideration of the pleadings, record papers,
exhibits, declarations, and depositions, as required by the
forgoing standard of review, the pertinent facts for purposes of
class certification are as follows.
Parties
Plaintiff Hawk Valley, Inc. (“Hawk Valley”) is a
Pennsylvania corporation with its principal place of business in
Denver, Lancaster County, Pennsylvania. 25

Hawk Valley operates a

golf course in Denver, Pennsylvania. 26
At the time the fax advertisement at issue here was
sent, Hawk Valley was owned by James Fricke, Ph.D.

Dr. Fricke

does not personally remember receiving that specific fax
advertisement. 27
Defendant Environmental Process Systems, Inc. is in
the business of manufacturing and selling industrial wastewater
treatment equipment. 28

25

EPSI manufactures and sells a product

Amended Class Complaint at ¶ 8.

26

See Plaintiff’s Exhibit A, Transcript of Deposition of Bennett W.
Taylor, Jr. taken January 18, 2013 (“Bennett Taylor Deposition”), at pages
70-71.
27

Taylor Exhibit H, copy of Transcript of Deposition of James
Fricke, Ph.D., taken April 19, 2013 (“Dr. Fricke Deposition”), at page 12.
28

Bennett Taylor Deposition at pages 6-7.

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called the “Grass Grab-er” that filters wastewater through grass
clippings for reuse. 29
Bennett W. Taylor, Jr. -- husband of defendant
Elaine G. Taylor (together, “the Taylors”) -- was employed by
EPSI during 2006 when the fax was transmitted.

Mr. Taylor

remained an EPSI employee until 2009, when the Taylors sold EPSI
to a company called Separator Solutions. 30
Before the sale of EPSI, EPSI employed four people,
including the Taylors.

Mr. Taylor, was President of EPSI.

Taylor was the Secretary and Treasurer of EPSI.

Mrs.

EPSI also

employed a man named John Hoke, and another serviceman.
The Taylors were the sole shareholders of EPSI, with
Mrs. Taylor owning 51% of EPSI’s stock and Mr. Taylor owning the
other 49%. 31
In 2006, Mrs. Taylor’s duties and responsibilities
involved “answer[ing] the phone” and covering “[a]ll clerical
work” for EPSI. 32

29

Mrs. Taylor did “[a]ny clerical work.

[She]

Bennett Taylor Deposition at page 40, and Taylor [Deposition]

Exhibit #4.
30

Bennett Taylor Deposition at pages 6, 9-10, and 12.

31

Id. at pages 10-11.

32

Id. at page 17.

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wrote the checks, paid the bills, [and] answered the telephone.
[She] just did it all.” 33
EPSI had a business banking account at First Gaston
Bank in Mt. Holly, North Carolina.

The Taylors were the only

two people with check-writing authority over EPSI’s account at
that time, and only one of their signatures was required.
Mrs. Taylor typically wrote the checks for the business. 34
Business to Business Solutions 35
From August 2005 until September 2007, Caroline
Abraham was doing business under the name Business to Business
Solutions (“B2B”).

B2B worked with a Romanian business called

Macaw, S.R.L. (hereafter “Macaw”, but which also utilized the
name “MaxiLeads”) and was engaged in the business of fax
advertising on behalf of businesses within the United States.
B2B’s fax advertising business was coordinated from Brooklyn,
New York.
Customers who engaged B2B to send fax advertisements
would direct it to send faxes to a particular geographic
33

Plaintiff’s Exhibit B, Transcript of Deposition of Elaine G.
Taylor taken January 18, 2013 (“Elaine Taylor Deposition”), at page 4.
34

Bennett Taylor Deposition at pages 18-19.

35

These facts concerning Business to Business Solutions are based
upon the following documents: Plaintiff’s Exhibit C, Declaration of Caroline
Abraham dated December 28, 2010, at ¶¶ 1-14; Plaintiff’s Exhibit D, Declaration of Caroline Abraham dated March 10, 2013, at ¶¶ 1-7 and Bates numbers
B2B000001 through B2B000019; and Plaintiff’s Exhibit G, copy of Transcript of
Deposition of Caroline Abraham taken June 23, 2013 (“Abraham Deposition”), at
pages 6-17.

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location or to a particular type of business.

Accordingly, B2B

would select a target list of recipients from a database of
contact information which B2B had purchased from an entity
called InfoUSA in 2004.

B2B did not contact any of the

businesses on the list that it purchased from InfoUSA to obtain
express permission or invitation from those entities for B2B to
send fax advertisements to them.
After B2B obtained approval of the copy and content
of, and received payment for, the advertisement from its
customer, B2B would cause the advertisement to be sent
simultaneously, en masse over telephone lines which ran through
computers in Ms. Abraham’s home.
InfoUSA 36
InfoUSA is a vendor of business information which its
customers purchase to utilize for various business-development
and marketing purposes.

A business’s fax number is among the

numerous pieces of contact information InfoUSA collected from a
variety of sources so it could sell that information to InfoUSA
customers like B2B.
To increase the reliability (and thus the value) of
the information it collects indirectly from various sources,

36

These facts concerning InfoUSA are based upon the following
documents: Taylor Exhibit G, copy of Transcript of Deposition of Chris
Fruehwald taken June 26, 2013 (“Fruehwald Deposition”), at pages 6-9, 12-29,
and 33-39.

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InfoUSA called businesses directly to verify the information it
has already obtained.

Prior to 2011 (and in 2004 when B2B

purchased contact information from InfoUSA), it was InfoUSA’s
practice verify the fax number for the businesses in its
database and to ask for a business’s fax number if InfoUSA did
not already have that number at the time of the verification
call.
Chris Fruehwald, Director of Compilation, testified
that some of the businesses contacted by InfoUSA during the
verification process would express interest in having their
contact information made available to InfoUSA’s customers. 37
However, there is no record evidence that InfoUSA
obtained express permission or invitation from any of the
businesses in its database for those businesses to receive fax
advertisements generally, or fax advertisements from B2B or from
either defendant specifically.
June 17, 2006 Fax Advertisement
The June 17, 2006 facsimile advertisement in this case
was the first time that EPSI was involved with fax advertising. 38
Earlier in 2006, EPSI was contacted by B2B.

EPSI

responded to B2B’s overture and entered into an agreement with
B2B for B2B to send facsimile advertisements for the Grass Grab37

Fruehwald Deposition at pages 23-24.

38

Id. at pages 20-21.

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er on EPSI’s behalf.

39

EPSI paid $387.20 to B2B for B2B to send

more than 6,000 fax advertisements for EPSI’s Grass Grab-er. 40
In communications between EPSI and Kevin Wilson
(identified by Caroline Abraham as a sales agent for Macaw),
EPSI identified “[g]olf course superintendents” as the target of
the advertisement and “emphasi[zed] that superintendents must be
targeted” because “[t]he Pro shops do not buy or have any input
on the purchase of Grass [G]rab-er™.” 41
EPSI did not furnish B2B with any of the fax numbers
utilized in the June 17, 2006 transmission. 42
The June 17, 2006 fax advertisement for EPSI’s Grass
Grab-er was sent successfully to 4,521 fax numbers, 43 including
plaintiff Hawk Valley. 44
The Taylors reviewed a sample of the businesses
associated with 2,369 of the 4,521 fax numbers utilized in the
June 17, 2006 transmission and identified 61 of 2,369 with whom
39

Fruehwald Deposition at pages 26-27, and 37-38.

40

Plaintiff’s Exhibit D, Declaration of Caroline Abraham dated
March 10, 2013, at ¶ 7.
41

Taylor Exhibit C, copy of letter dated June 1, 2006 from EPSI to
Mr. Kevin Wilson at MaxiLeads, Brooklyn, New York.
42

Bennett Taylor Deposition at pages 36 and 40.

43

See Plaintiff’s Exhibit E, Expert Report of Robert Biggerstaff
dated March 2, 2011, at ¶ 11 and Exhibit 4.
44

EPSI Exhibit N-2, spreadsheet of purported recipients of the
June 17, 2006 fax listing Hawk Valley, Inc. in Denver, Pennsylvania at number
1911.

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EPSI had previously done, or was doing, business as of June
2006.

From review of that same sample, the Taylors identified

approximately 570 businesses which do not have a golf course on
the premises. 45
The record evidence does not suggest that Mrs. Taylor,
any other employee or agent of EPSI, or any employee or agent of
B2B obtained or received express permission or invitation from
any of the recipients of the June 17, 2006 transmission for such
recipients to receive advertisements by fax.
CONTENTIONS OF THE PARTIES
Contentions of Plaintiff
Rule 23(a) Requirements
Plaintiff contends that the numerosity requirement
under Rule 23(a)(1) is satisfied because there is record
evidence that fax advertisement at issue here was sent to, and
received by, 4,521 unique fax numbers. 46
Plaintiff contends that the commonality requirement
under Rule 23(a)(2) is satisfied because defendants are alleged
to have engaged in standardized conduct with respect to Hawk
Valley and the putative class members.

Moreover, plaintiff

contends that there are common questions of fact concerning the
45
Taylor Exhibit D, Part 1, copy of sworn joint statement of
Elaine G. Taylor and Bennet W. Taylor dated August 6, 2013, and Exhibit A to
Taylor Exhibit D.
46

Hawk Valley Memorandum at page 14.

-22-

creation and sending of the fax advertisement, and common
questions of law concerning the requirement for liability and
the damages available under the federal Telephone Consumer
Protection Act. 47
Plaintiff contends that the typicality requirement
under Rule 23(a)(3) is clearly satisfied because the claims of
plaintiff and the putative class members are based upon the same
legal theory (that is, that defendants Taylor and EPSI are each
liable under the TCPA for the fax advertisement sent June 17,
2006). 48
Plaintiff contends that the adequacy requirement under
Rule 23(a)(4) is satisfied because Hawk Valley is interested in
prosecuting this matter as a class action and does not have any
conflicts with other putative class members.

In addition,

plaintiff’s attorneys have been litigating TCPA claims for many
years, have been appointed a lead or co-lead class counsel in
many cases, and will continue to devote adequate time and
resources to the prosecution of this action. 49
Rule 23(b)(3) Requirements
Plaintiff contends that the predominance requirement
under Rule 23(b)(3) is satisfied here because “[i]n this case,
47

Hawk Valley Memorandum at pages 14-15.

48

Id. at pages 15-16.

49

Id. at pages 16-18.

-23-

no individualized issues are present.” 50

Specifically, plaintiff

asserts that “[p]laintiff’s claims are identical to the claims
of the other class members” and “[b]ecause each class member is
entitled to statutory damages in the same amount, there will be
no need to conduct an individualized inquiry into the question
of damages.” 51
Finally, plaintiff contends that the superiority
requirement under Rule 23(b)(3) is satisfied here because (1)
common issues predominate plaintiff’s claim and the claims of
the more-than-four-thousand putative class members, and (2) the
minor nature of the actual injury suffered and monetary recovery
available, together with the absence of a provision in the TCPA
awarding attorney fees to successful plaintiffs, combine to
render individual actions impractical and unfeasible. 52
Contentions of Defendants
Rule 23(a) Requirements
Defendants do not contest the numerosity requirement
of Rule 23(a)(1).

However, defendants contend that the

commonality, typicality, and adequacy requirements of
Rule 23(a)(2)-(4) are not satisfied.

50

Hawk Valley Memorandum at page 19.

51

Id.

52

Id. at pages 19-20.

-24-

Defendants contend that the commonality requirement of
Rule 23(a)(2) is not satisfied here. 53

However, although

neither defendant expressly concedes that the commonality
requirement has been met, review of their answer, response,
exhibits and briefs in opposition to class certification demonstrates that their arguments concerning the individualized
nature of the claim and defenses is primarily aimed at the more
stringent predominance and superiority requirements of
Rule 23(b)(3), and that the less-stringent commonality
requirement has been satisfied here. 54
Defendants contend that the typicality requirement of
Rule 23(a)(3) cannot be satisfied here.

Defendants each argue

that typicality is unsatisfied because there are issues and
defenses individual to each potential class member. 55
Defendants’ typicality argument essentially restates their
commonality and predominance arguments.
Defendants also contend that the adequacy requirement
of Rule 23(a)(4) has not been satisfied.

Specifically,

defendants contend that Hawk Valley is not an adequate class
representative.

53

They make that argument because James Fricke,

EPSI Response to Motion at pages 1-2; Taylor Answer to Motion at

pages 1-2.
54

EPSI Memorandum at pages 7-19; Taylor Memorandum at pages 7-19.

55

EPSI Memorandum at pages 19-20; Taylor Memorandum at pages 7-9.

-25-

Ph.D., who owned Hawk Valley at the time the fax involved was
sent in June 2006 (but has since sold Hawk Valley), testified at
his deposition that he does not have a specific recollection of
whether, or when, Hawk Valley received a fax advertisement from
defendant EPSI.

Defendants both contend that because Hawk

Valley (through Dr. Fricke) has no fundamental knowledge of the
fax, the corporate plaintiff is essentially a pawn of
plaintiff’s counsel, and therefore is not an adequate class
representative. 56
Defendant EPSI further contends that Hawk Valley is
not an adequate class representative because Hawk Valley signed
a retainer agreement which provides that Hawk Valley will not
oppose the anticipated request of putative-class counsel for a
fee award of one-third of any recovery obtained by the class. 57
Although EPSI states that it will “focus upon the
adequacy of Plaintiff, Hawk Valley”, EPSI nonetheless notes that
“many other TCPA cases arising from the activities of [Business
to Business Solutions] have challeng[ed] the actions of
Plaintiff[‘s] counsel”. 58

56

Taylor Memorandum at pages 20-21; EPSI Memorandum at pages 4-6.

57

EPSI Memorandum at page 7.

58

Id. at page 5 n. 1 (citing Machesney v. Lar-Bev of Howell, Inc.,
292 F.R.D. 412 (E.D.Mich. 2013), and Creative Montessori Learning Centers v.
Ashford Gear LLC, 662 F.3d 913 (7th Cir. 2011)).

-26-

Rule 23(b)(3) Requirements
Predominance
Defendant EPSI contends that the predominance
requirement under Rule 23(b)(3) is unsatisfied because “the
claim asserted by plaintiff and the putative class members
requires investigation into numerous individualized inquiries
specific to potential class members such that predominance
cannot be satisfied.” 59

Similarly, defendant Taylor contends

that the predominance requirement is not met because “[a]
comprehensive, detailed individual assessment of each of the
4,521 businesses who allegedly received the fax at issue is
required.” 60
Defendant EPSI contends that the defenses available to
it under the Telephone Consumer Protection Act, 47 U.S.C. § 227,
will require individualized inquiries regarding each potential
class member.

Specifically, defendant EPSI contends that, for

an advertisement to be considered “unsolicited”, it must have
been sent “without [the recipient]'s prior express invitation or
permission, in writing or otherwise”.

Accordingly, EPSI argues,

an individualized inquiry is required for each potential class

59

EPSI Memorandum at page 7.

60

Taylor Memorandum at page 8.

-27-

member to determine whether the potential class member gave
“express invitation or permission, in writing or otherwise”. 61
Defendant EPSI makes the same individualized-inquiry
argument about the three “unless” conditions -- that is, section
227(b)(1)(C)(i) to (iii) quoted above -- which exclude certain
advertisements from section 227(b)(1)(C)’s prohibition.

In

other words, EPSI argues that an individual inquiry is required
for every potential class member to determine whether each of
the three necessary requirements of § 227(b)(1)(C)(i) to (iii)
is met and the advertisement is thus prohibited by section
227(b). 62
Defendant Taylor similarly argues against predominance, and focusses on the necessity of individualized inquiry
into whether (1) EPSI had a pre-existing business relationship
with each potential class member and (2) the recipient
voluntarily made its fax number available for public
distribution. 63
Additionally, defendant EPSI contends that B2B only
had authority to send the advertisement to a narrow category of
recipients (namely, golf-course superintendents) and that B2B

61

EPSI Memorandum at pages 8-12; see 47 U.S.C. § 227(a)(5)(defining
“unsolicited advertisement”).
62

EPSI Memorandum at pages 8-12; see § 227(b)(1)(C)(i)-(iii).

63

Taylor Memorandum at pages 9-15, and 18-20.

-28-

greatly exceeded the scope of its authority in transmitting the
fax.

Therefore, defendant EPSI argues, an individualized

inquiry will be required to determine whether each potential
class member was a recipient within the scope of authority
granted to B2B, or whether B2B essentially acting on its own
(without authority from defendants) by sending the advertisement
to a particular class member. 64

Defendant Taylor also makes this

argument. 65
Defendant EPSI also contends that individualized
inquiries are required for each potential class member to
determine whether that class member actual received a fax
transmission from EPSI through B2B, or, rather, whether the fax
transmission from B2B was received by a third-party messaging
service, converted into email form, and then sent to the final
recipient in email form. 66

Defendant Taylor does not make this

argument in her memorandum. 67
Finally, defendant EPSI contends that plaintiff has
not shown that any of the 4,521 potential class members
(1) owned the fax machine or other equipment which received the
alleged June 17, 2006 fax advertisement, and (2) is currently
64

EPSI Memorandum at pages 14-16.

65

Taylor Memorandum at pages 15-17.

66

EPSI Memorandum at pages 16-19.

67

Taylor Memorandum at pages 6-25.

-29-

the owner of the same fax number. 68

Defendant Taylor does not

make this argument in her memorandum. 69
Superiority
Defendants also contend that the superiority requirement of Rule 23(b)(3) is unsatisfied.

Specifically, each argues

that a class action is not a superior method of resolving this
dispute because the individualized issues addressed in the
predominance arguments will require mini-trials for each class
member. 70

As with defendants’ arguments concerning commonality

and typicality, defendants’ argument concerning superiority
overlaps substantially with their argument that individual
issues predominate over common issues in this case.
Alternative Definition of Class
The definition of the class to be certified, as
proposed by plaintiff, and approved in the Order accompanying
this Opinion, is:
All persons sent one or more faxes on June 17, 2006
from “Environmental Process Systems, Inc.” that
advertised “EPSI’s Grass Grab-er” as a “New way to
treat your equipment wash water.”
In their respective memoranda, both defendants further
contended that, in the event Plaintiffs’ Motion for Class Certi-

68

EPSI Memorandum at page 18.

69

Taylor Memorandum at pages 6-25.

70

EPSI Memorandum at pages 20-21; Taylor Memorandum at pages 21-24.

-30-

fication were granted, the class definition proposed by
plaintiff should be modified. 71

Defendant EPSI provides the

following alternative definition:
All persons or entities serving as a golf-course
superintendent which received a facsimile on June 17,
2006, on a telephone facsimile machine which it owned,
from Environmental Process Systems, Inc. advertising
EPSI’s Grass Grab-er as a “New way to treat your
equipment wash water” who: (1) did not have a preexisting business relationship with EPSI as defined by
47 U.S.C. § 227(b)(1)(C)(i); and (2) did not agree to
make is fax number available for public distribution
through a directory, advertisement, or site on the
internet. 72
Defendants’ Supplemental Briefs
Defendants contend in their supplemental briefs that
the additional case law cited therein provides further support
for their proposition that the individualized inquiries which
would be required concerning each potential class member
predominate and, thus, warrant a denial of the motion for class
certification. 73

Defendants further contend that the proposed

class is not readily ascertainable based upon plaintiff’s
proposed class definition. 74

71

EPSI Memorandum at pages 21-22 n.8; Taylor Memorandum at
pages 24-25 n.5.
72

EPSI’s alternative proposed Order (Document 101-2).

73

EPSI Supplemental Brief at pages 2-8.

74

EPSI Supplemental Brief at pages 8-9.

-31-

DISCUSSION
Rule 23(a) Requirements
Numerosity
Satisfaction of the numerosity requirement does not
require evidence of the exact number or identification of the
members of the proposed class.

Saunders v. Berks Credit and

Collections, Inc., 2002 U.S.Dist. LEXIS 12718 at *16 (E.D.Pa.
July 12, 2002)(DuBois, S.J.).

Rather, the proposed class must

be so numerous that joinder is impracticable.

Id.

Defendants do not contend, and could not plausibly
contend (given the number of purported recipients (4,521) of the
June 17, 2006 fax advertisement), that plaintiff fails to
satisfy the numerosity requirement.
Commonality
Commonality requires a showing of the existence of
questions of law or fact common to the class.

A common question

is one arising from a common nucleus of operative facts.
ders, 2002 U.S.Dist. LEXIS 12718 at *17.

Saun-

Generally, where

defendants have engaged in standardized conduct towards members
of the proposed class, common questions of law and fact exist.
Id.

In fact, a single common question is sufficient to satisfy

this requirement.

Id. (citing In re Prudential Insurance

Company, 148 F.3d 283, 310 (3d Cir. 1998)).

-32-

The commonality requirement itself is not an onerous
one, and the United States Court of Appeals for the Third
Circuit has recognized that the less-stringent test of
commonality is subsumed by the more-stringent predominance
requirement.

Georgine v. Amchem Products, Inc., 83 F.3d 610,

626-627 (3d Cir. 1996).
As noted in the above section concerning defendants’
contentions regarding commonality, neither defendant expressly
concedes that the commonality requirement has been met here.
However, review of their answer, response, exhibits, and briefs
in opposition to class certification demonstrates that their
arguments concerning the individualized nature of the claim and
defenses is primarily aimed at the more stringent predominance
and superiority requirements of Federal Rule of Civil Procedure
23(b)(3), and that the less-stringent commonality requirement
has been satisfied here. 75
I conclude that plaintiff has satisfied the commonality requirement imposed by Rule 23(a)(a).

Specifically, both

EPSI and Mrs. Taylor contend that B2B exceeded the scope of
authority granted to it by sending the fax to recipients other
than golf-course superintendents. 76

The questions of what the

scope of B2B’s authority was vis-à-vis EPSI, and whether B2B’s

75

EPSI Memorandum at pages 7-19; Taylor Memorandum at pages 7-19.

76

Taylor Memorandum at pages 15-17; EPSI Memorandum at pages 14-16.

-33-

conduct exceeded the scope of that authority, are common
questions which satisfy the commonality requirement.
Typicality
The third element of Rule 23(a) requires that the
claims or defenses of the representative parties are typical of
the claims or defenses of the class.

Fed.R.Civ.P. 23(a)(3).

“If a plaintiff's claim arises from the same event,
practice or course of conduct that gives rise to the claims of
the class members, factual differences will not render that
claim atypical if it is based on the same legal theory as the
claims of the class.”

Marcus v. BMW of North America,

687 F.3d 583, 598 (3d Cir. 2012)(citing Hoxworth v. Blinder,
Robinson & Co., 980 F.2d 912, 913 (3d Cir. 1992)).
In a nutshell, the court must be satisfied that “the
incentives of the [class representatives] are aligned with those
of [the absentees].”
296 (3d Cir. 2006).

Beck v. Maximus, Inc., 457 F.3d 291, 295–
Stated another way, in determining whether

the typicality requirement is met, a court must consider
“whether the named plaintiffs’ claims are typical, in commonsense terms, of the class, thus suggesting that the incentives
of the plaintiffs are aligned with those of the class.”
Saunders, 2002 U.S.Dist. LEXIS 12718 at *19.
I conclude that the typicality requirement is satisfied in this matter because plaintiff is, and the putative class
-34-

members would be, asserting the same legal claim (that
defendants violated 47 U.S.C § 227(b)(1)(C)) against the same
defendants (Mrs. Taylor and EPSI) based upon the same incident
(the June 17, 2006 fax transmission).
Adequacy
Adequacy is satisfied by showing that (1) class
counsel is competent and qualified to conduct the litigation;
and (2) class representatives have no conflicts of interests.
See New Directions Treatment Services v. City of Reading,
490 F.3d 293, 313 (3d Cir. 2007).
Class Counsel
Although defendant EPSI states that it will “focus
upon the adequacy of Plaintiff, Hawk Valley”, defendant EPSI
notes that “many other TCPA cases arising from the activities of
B2B have challeng[ed] the actions of Plaintiff[‘s] counsel”. 77
Although the district court in Machesney and the
Seventh Circuit in Creative Montessori each expressed misgivings
about the conduct of the Anderson + Wanca firm and Attorney
Wanca in particular, Attorneys Milstein and Bock (plaintiff’s
other counsel) are each (as defendant EPSI acknowledges)
affiliated with firms other than Anderson + Wanca.

77

Defendant

EPSI Memorandum at page 5 n. 1 (citing Creative Montessori
Learning Centers v. Ashford Gear LLC, 662 F.3d 913 (7th Cir. 2011), and
Machesney v. Lar-Bev of Howell, Inc., 292 F.R.D. 412 (E.D.Mich. April 22,
2013)).

-35-

EPSI does not challenge the adequacy of either Attorney Milstein
or Attorney Bock.
Moreover, the district court in Machesney did not
state that it would have disqualified Attorney Wanca from
serving as class counsel based upon his conduct, see Machesney,
292 F.R.D. at 424.

More importantly, when considering the

question on remand from the Seventh Circuit, the district court
in Creative Montessori found that the voluminous supplemental
evidence submitted by the parties did not actually reveal
misconduct by Attorney Wanca and noted that multiple district
court have found Attorney Wanca to be adequate class counsel
even after the Seventh Circuit’s previous Opinion in that case.
See Creative Montessori Learning Center v. Ashford Gear, LLC,
2012 U.S.Dist. LEXIS 128203, at *4-7 (N.D.Ill. Sept. 10, 2012).
For the reasons expressed above (and based upon the
qualifications set forth in the thorough resumes submitted by
Attorneys Milstein, Wanca, and Bock) 78, to the extent defendants
challenge the adequacy of counsel for the proposed class, I find
their argument unavailing, and I conclude that Attorneys
Milstein, Wanca, and Bock are each competent to act as class
counsel.

78

Plaintiff’s Motion for Class Certification, Exhibit R (Docu-

ment 98-24).

-36-

Class Representative
As noted above, defendants contend that Hawk Valley is
not an adequate class representative.

They argue that

Dr. Fricke (who owned Hawk Valley at the time the fax involved
was sent, but has since sold Hawk Valley) testified at his
deposition that he does not have a specific recollection of
whether, or when, Hawk Valley received a fax advertisement from
defendant EPSI.

Defendants both contend that because Hawk

Valley (through Dr. Fricke) has no fundamental knowledge of the
fax, the corporate plaintiff is essentially a pawn of
plaintiff’s counsel, and therefore not an adequate class
representative. 79
However, defendants have not provided, and I am not
aware of any, authority establishing a requirement that a
recipient or a recipient’s representative (in the case of a
business-entity recipient) have direct personal knowledge of the
individual fax transmission involved in an action under the TCPA
based on an unsolicited fax advertisement.
Here, given the fact that plaintiff’s putative
evidence of the June 17, 2006 fax transmission is based upon
documents and electronic records, I conclude that Dr. Fricke’s
deposition testimony indicating that he does not personally
79

Taylor Memorandum at pages 20-21; EPSI Memorandum at pages 4-6.

-37-

remember whether, or when, Hawk Valley received the June 17,
2006 fax advertisement for EPSI’s Grass Grab-er product does not
render Hawk Valley an inadequate class representative.
Defendant EPSI further contends that Hawk Valley is
not an adequate class representative because Hawk Valley signed
a retainer agreement which provides that Hawk Valley will not
oppose the anticipated request of its attorneys for a fee award
of one third of any recovery obtained by the class. 80
In Machesney v Lar-Bev of Howell, Inc.,
292 F.R.D. 412, 425 (E.D.Mich. April 22, 2013), the district
court called the putative class plaintiff’s assent to the onethird fee agreement and waiver of plaintiff’s right to contest
the amount of the fee “troubling...in light of the repetitive
nature of these actions and considering the amount of work
actually performed by Counsel in relation to the settlement
and/or judgments that have been obtained in other [TCPA] cases”.
Nevertheless, the court did not find plaintiff to be an
inadequate class representative on that ground.

See id. at 425-

433 where the district court denied class certification based
upon lack of a sufficiently ascertainable class and the predominance of individualized issues.
Defendant EPSI does not explain how or why plaintiff
Hawk Valley’s entry into a one-third contingent-fee agreement
80

EPSI Memorandum at page 7.

-38-

creates a conflict of interest between plaintiff and the
putative class members.

While it may be argued that plaintiff

should not have foregone a future right to contest a fee award
in this matter, plaintiff did not attempt to bind any putative
class members to the fee agreement into which it entered, nor
did plaintiff purport to waived the right of class members to
object to any future fee award to class counsel in this matter.
For these reasons, I conclude that the fee agreement entered
into by plaintiff does not render plaintiff an inadequate
representative of the putative class.
In sum, plaintiff’s has sufficiently demonstrated both
that its attorneys are competent to represent the putative
class, and that plaintiff is interested in, and capable of,
diligently prosecuting this action, and does not have interests
which conflict with those putative class members which it seeks
to represent here.
For all of the foregoing reasons, I conclude that
plaintiff has satisfied the necessary requirements for class
certification set forth in Rule 23(a) of the Federal Rules of
Civil Procedure.

-39-

Rule 23(b)(3) Requirements
Predominance
As noted above, plaintiff contends that the
predominance requirement of Federal Rule of Civil Procedure
23(b)(3) is satisfied because “[p]laintiff’s claims are
identical to the claims of the other class members” and
“[b]ecause each class member is entitled to statutory damages in
the same amount, there will be no need to conduct an
individualized inquiry into the question of damages.” 81
Defendants contend that the predominance requirement
is unsatisfied here because of individualized determinations
which will have to be made with respect to each class member in
order to determine if each class member can sustain an
unsolicited-fax-advertisement claim against defendants Taylor
and EPSA under 47 U.S.C. § 227(b)(1)(C).
Those inquiries, according to defendants, include
whether each putative class member (1) gave “express permission,
in writing or otherwise” to receive fax advertisements from
defendants; (2) had an existing business relationship with EPSI
prior to the June 17, 2006 fax transmission; (3) made its fax
number available for public distribution; (4) was within the
scope of the authority given to B2B to send fax advertisements

81

Hawk Valley Memorandum at page 19.

-40-

for EPSI’s Grass Grab-er to golf-course superintendents; and
(5) actually received the June 17, 2006 fax transmission. 82
The parties have not provided, and I am not aware of
any, controlling authority from the United States Court of
Appeals for the Third Circuit regarding class certification in a
TCPA unsolicited-fax case, or the narrower issue of predominance
in such a case.
Defendants understandably highlight the decisions of
courts in cases involving TCPA unsolicited-fax advertisement
claims which have found individual issues to predominate in such
cases and, accordingly, have denied motions for class
certification. 83
However, a substantial body of case law supports the
opposite conclusion.

Specifically, numerous district courts

have found that although TCPA unsolicited-fax cases do present

82

EPSI Memorandum at page 7.

83

See, e.g., UESCO Industries, Inc. v. Poolman of Wisconsin, Inc.,
993 N.E.2d 97, 108-116 (Ill.App.Ct. 2013)(denying class certification in an a
case involving defendant’s use of B2B in fax advertising); Bridging
Communities, Inc. v. Top Flite Financial, Inc., 2013 WL 2417939, at *2
(E.D.Mich. June 3, 2013)(relying on Forman, infra, to deny class certification in TCPA unsolicited fax advertisement case); Compressor Engineering
Corporation v. Manufacturers Financial Corp., 2013 U.S.Dist. LEXIS 59849, at
*35-63 (E.D.Mich. April 26, 2013)(Cox, J.) (denying class certification in an
a case involving defendant’s use of B2B in fax advertising); APB Associates,
Inc. v. Bronco’s Saloon, Inc., 2013 U.S.Dist. LEXIS 59852, at *36-63
(E.D.Mich. April 26, 2013)(Cox, J.) (same); Machesney v. Lar-Bev of Howell,
Inc., 292 F.R.D. 412, 425-433 (E.D.Mich. 2013)(Cox, J.) (same); Forman v.
Data Transfer, Inc., 164 F.R.D. 400, 404-405 (E.D.Pa. 1995)(Giles, J.)
(denying class certification in TCPA unsolicited-fax advertisement case).

-41-

some individualized issues, common issues of law and fact
predominate, and, thus, have granted class certification. 84
In addition to the district court decisions concerning
class certification in similar cases involving the utilization
by defendants of B2B in fax advertising efforts (which I find
persuasive concerning the within motion), two cases from the
United States Court of Appeals for the Seventh Circuit –Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489
(7th Cir. 2013)(“Reliable Money II”), and Ira Holtzman, C.P.A.,
& Associates Limited v. Turza, 728 F.3d 682(7th Cir. 2013) -provide further authority favoring the certification of a class
in the within matter.
In Reliable Money Order, Inc. v. McKnight Sales
Company, Inc., 281 F.R.D. 327 (E.D.Wisc. 2012)(“Reliable
84

See, e.g., City Select Auto Sales, Inc. v. David Randall
Associates, Inc., 2013 U.S.Dist. LEXIS 178950, at *37-41 (D.N.J. December 20,
2013)(granting class certification in a case involving defendant’s use of B2B
in fax advertising); A&L Industries, Inc. v. P. Cipollini, Inc.,
2013 U.S.Dist. LEXIS 142643, at *10-12 (D.N.J. October 2, 2013)(same); The
Siding and Insulation Co. v. Beachwood Hair Clinic, 279 F.R.D. 442, 446
(N.D.Ohio 2012)(same); Imhoff Investment, LLC v. SamMichaels, Inc.,
2012 U.S.Dist. LEXIS 148049, at *8-9 (E.D.Mich. October 1, 2012)(“Imhoff I”)
(same); Creative Montessori Learning Center v. Ashford Gear, LLC,
2011 U.S.Dist. LEXIS 83419, at *18-20 (N.D.Ill. July 27, 2011)(same), rev’d
on appeal, 662 F.3d 913, 918-919 (7th Cir. 2011)(addressing legal standard
applicable to assessment of adequacy of class counsel and remanding for
further proceedings), class cert. granted on remand, 2012 U.S.Dist.
LEXIS 128203, at *9 (N.D.Ill. September 10, 2012); American Copper & Brass,
Inc. v. Lake City Industrial Products, Inc., 2012 U.S.Dist. LEXIS 102207, at
*10-16 (W.D.Mich. July 24, 2012)(granting class certification in a case
involving defendant’s use of B2B in fax advertising); CE Design Ltd. v. Cy’s
Crabhouse North, Inc., 259 F.R.D. 135, 143 (N.D.Ill. 2009)(same); see also
Hinman v. Italia Foods, Inc. v. M and M Rental Center, Inc.,
545 F.Supp.2d 802, 807-808 (N.D.Ill. 2008)(granting class certification in
case where defendant used a third-party advertiser to send fax
advertisement).

-42-

Money I”), the district court granted plaintiff’s motion for
class certification in a similar TCPA unsolicited-fax case where
defendant authorized B2B to send a fax advertisement for
discounted magazine subscriptions.
at 330.

Reliable Money I, 281 F.R.D.

The fax advertisement at issue there was sent in April

2006 and plaintiff did not remember receiving the specific fax.
Id.

There, as here, plaintiff’s counsel learned through

electronic records (obtained from B2B) that the fax had been
sent to Reliable Money.

See Reliable Money I, 281 F.R.D. at

330.
With respect to defendant’s argument in Reliable Money
that individualized issues predominated and, thus, that class
certification was inappropriate, the district court acknowledged
that individual issues might arise:
The individual issues that the court foresees relate
to the need to determine whether some of the recipeents gave permission to receive the faxes prior to
transmission or whether individual plaintiffs had an
established business relationship with the defendant
before receiving the fax at issue in this case.
Reliable Money I, 281 F.R.D. at 338.
In other words, the district court in Reliable Money
considered the core individualized issues presented by
defendants here in opposition to certification and determined
that class certification was appropriate despite the existence
of some individualized issues because, in the context of the

-43-

action as a whole, those individual issues were “minor and
[could] certainly be handled within the framework of a class
action.”

Reliable Money I, 281 F.R.D. at 338.
Following the district court’s decision to grant class

certification in Reliable Money I, defendant appealed.

Although

the primary dispute on appeal concerned alleged misconduct by
putative class counsel (discussed further in the “Adequacy”
subsection above), the Seventh Circuit affirmed the district
court’s determination that class certification was appropriate.
Reliable Money II, 704 F.3d at 502.
Here, as in the Reliable Money case, there are issues
which may arise concerning whether individual class members gave
express consent or invitation to receive fax advertisements, and
whether individual class members had existing business
relationships with defendants.
Nevertheless, I conclude that those individualized
issues do not predominate over the common questions presented
here, considering the scope of this action as a whole, and
given, in particular (1) the lack of record evidence suggesting
that anyone along the contact-information chain -- that is,
anyone at InfoUSA, B2B, or EPSI (including defendant Taylor) -sought or received express permission or invitation from any of
the 4,521 recipients to receive fax advertisements; and (2) the
small percentage of the sample (and thus the likely-small
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percentage of entire 4,521 recipients) with whom Hawk Valley or
the Taylors had done or were doing business as of June 2006.
In Holtzman v. Turza, 2009 U.S.Dist. LEXIS 95620
(N.D.Ill. Oct. 14, 2009)(“Holtzman I”), the district court
rejected the argument that individual issues (including the
issue of prior consent) predominated in a TCPA unsolicited-faxadvertisement case where defendant provided a third-party
broadcaster (who ultimately executed the fax transmission on
defendant’s behalf) with defendant’s own personally-developed
list of contacts and a list of contact information purchased
from a professional organization.

Holtzman I, 2009 U.S.Dist.

LEXIS 95620, at *2-3, and *15-19.
The United States Court of Appeals for the Seventh
Circuit affirmed the district court’s decision to grant class
certification.

In doing so, the Seventh Circuit noted that

“[c]lass certification is normal in litigation under § 227 [of
the TCPA] because the main questions, such as whether a given
fax is an advertisement, are common to all recipients.”
Holtzman II, 728 F.3d at 684.
For the reasons expressed above, I find that the
Reliable Money and Holtzman cases provide persuasive authority
to support granting Plaintiff’s Motion for Class Certification.
In Gene and Gene LLC v. BioPay LLC, 541 F.3d 318
(5th Cir. 2008)(“Gene and Gene I”), the United States Court of
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Appeals for the Fifth Circuit reversed the district court’s
decision to grant plaintiff’s motion for class certification in
a TCPA unsolicited-fax case.

Gene and Gene I, 541 F.3d at 326-

329. 85
In Gene and Gene I, The Fifth Circuit held that the
district court abused its discretion in granting class
certification because, the Circuit Court stated, based upon the
facts of that case (including the fact that certain recipients
of the fax sent by BioPay had provided their fax numbers to
BioPay directly at trade shows and/or through BioPay’s website),
id. at 327-328, “the predominant issue of fact is undoubtedly
one of individual consent.”

Id. at 327.

The Fifth Circuit reached its conclusion that the
individual issue of consent by each class member predominated
(and, thus, rendered class certification inappropriate) based
upon a distinction it drew between Forman v. Data Transfer,

85

On remand from Gene and Gene I, the district court re-opened
discovery and permitted plaintiff to file a motion to re-certify a class,
which motion to re-certify was granted. Gene and Gene, LLC v. BioPay, LLC,
269 F.R.D. 621, 627 (M.D.La. 2009)(“Gene and Gene II”). BioPay took a second
interlocutory appeal to the Fifth Circuit challenging the district court’s
ruling in Gene and Gene II. On that second interlocutory appeal, the Fifth
Circuit determined that it had already held that the predominance requirement
under Rule 23(b)(3) was not satisfied, and that, based upon the facts and
procedural posture of the case, the law-of-the-case doctrine did not permit
re-litigation of the class certification question. Gene and Gene, L.L.C. v.
BioPay, L.L.C., 624 F.3d 698, 703 (5th Cir. 2010)(“Gene and Gene III”).

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Inc., 164 F.R.D. 400 (E.D.Pa. 1995)(Giles, J.), and Kavu v.
Omnipak Corporation, 246 F.R.D. 642 (W.D.Wash. 2007). 86
Specifically, the Fifth Circuit explained that the
issue of consent to receive fax advertisements was susceptible
to common proof (and, thus, that class certification was
appropriate) in Kavu “because [defendant] Omnipak had obtained
all of the fax recipients’ fax numbers from a single purveyor of
such information” and because, in light of that fact, a common
method of proving lack of consent was available to [plaintiff]
Kavu.

Gene and Gene I, 541 F.3d at 327-328 (citing Kavu,

246 F.R.D. at 645).

By contrast, according the Fifth Circuit,

the gravamen of the class complaint in the Forman case arose
from “a series of individual transmissions under individual
circumstances”.

Id. at 328 (quoting Forman, 164 F.R.D. at 404).

The Fifth Circuit stated explicitly that violations of
47 U.S.C. § 227(b)(1)(C) “are not per se unsuitable for class
resolution” and that the factual circumstances of each case will
determine whether class certification is proper.

Id. at 328.

While, as discussed above, I find the determination in
Reliable Money (a case involving a defendant who utilized B2B to
send a fax advertisement for defendant’s services) to be
persuasive on the question of predominance, class certification

86

Defendants here both cite the Forman case in their respective
initial opposition documents filed in response to Plaintiff’s Motion for
Class Certification.

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is also supported under the distinction between the Forman and
Kavu cases which was drawn by the Fifth Circuit in Gene and
Gene I because the record evidence here demonstrates that
defendants EPSI and Taylor were not directly involved in culling
and compiling the fax numbers utilized in the June 17, 2006
transmission, and that B2B obtained the contact information
which it utilized in the June 17, 2006 fax transmission “from a
single purveyor of such information” -- that is, from InfoUSA.
Scope of Authority
Defendants contend that the question of whether a
particular class member is within the scope of the authority
given to B2B for B2B to send fax advertisements concerning
EPSI’s Grass Grab-er is inherently individualized and weighs
against a finding that common questions predominate in this
action.
While this argument is not wholly meritless, it is
ultimately unavailing.

This is so because the second-stage

question highlighted by defendants -– that is, “Is X class
member within the scope of the authority granted to B2B?” –necessarily requires the answer to an equally- if not moresignificant first-stage question -- namely, “What is the scope

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of the authority given to B2B to send fax advertisements for the
Grass Grab-er?” 87
In Imhoff Investment, LLC v. SamMichaels, Inc.,
2014 U.S.Dist. LEXIS 4965 (D.N.J. Jan. 15, 2014)(“Imhoff II”)
–- an Opinion which defendants identified as supplemental
authority supporting denial of class certification here -- the
district court noted that the FCC includes in its definition of
“sender” a person “on whose behalf” a fax broadcaster (there, as
here, B2B), id. at *14 (quoting 47 C.F.R. § 1200(f)(10), and,
held that that language includes a defendant who did not
physically send a fax advertisement.

Imhoff II, 2014 U.S.Dist.

LEXIS 4965, at *14.
The district court further noted, correctly, that the
relevant FCC regulations define a “sender” as “the person or
entity on whose behalf a facsimile unsolicited advertisement is
sent or whose goods or services are advertised or promoted in
the unsolicited advertisement” and that the FCC does not require
a formal relationship in order to establish on-behalf-of
liability.

Id.

at *14-15 (citing 47 C.F.R. § 1200(f)(10)).

Accordingly, the district court concluded, a plaintiff
asserting an unsolicited-fax-advertisement claim could rely upon
ratification or apparent authority to establish a defendant’s
87

Furthermore, the related question of “What, if any, liability
under the TCPA attaches to defendant EPSI and Taylor for fax advertisements
sent by B2B at defendants’ behest but to recipients outside the target group
of ‘golf-course superintendents’?”, is a common question of law.

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vicarious liability for the fax transmission of a third-party
transmitter under common law agency principles.

Imhoff II,

2014 U.S.Dist. LEXIS 4965, at *15.
Here, while defendants raise this scope-of-authority
argument in opposition to the predominance requirement, the
factual and legal questions concerning the existence, nature,
and extent of the relationship between B2B and either defendant
are common questions.

See id. at *15-20.

When those common

questions are weighed against the second-stage question raised
by defendants, I conclude that common questions -- that is, the
first-stage inquiry -– predominate.
Opt-Out-Notice Dispute
A dispute arose during closing arguments at the
November 8, 2013 class-certification hearing which became the
subject of post-hearing briefing by the parties.

That dispute

concerns the operative date of the so-called opt-out-notice
requirement added to section 227(b)(1)(C) of the TCPA, see
47 U.S.C. § 227(b)(1)(C)(iii), as amended by the Junk Fax
Prevention Act of 2005. 88

88

Act of July 9, 2005, P.L. 109-21, 119 Stat. 395, §§ 1–4 (“JFPA”),
amending 47 U.S.C. § 227.
Specifically, and as pertinent to this matter, section 2(c) of
the JFPA provided:
REQUIRED NOTICE OF OPT–OUT OPPORTUNITY.—Section 227(b)(2) of the
Communications Act of 1934 (47 U.S.C. 227(b)(2)) is amended —
(Footnote 88 continued):

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(Continuation of footnote 88):
(1) in subparagraph (B), by striking “and” at the end;
(2) in subparagraph (C), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
“(D) shall provide that a notice contained in an
unsolicited advertisement complies with the requirements
under this subparagraph only if—
“(i) the notice is clear and conspicuous and on the
first page of the unsolicited advertisement;
“(ii) the notice states that the recipient may make a
request to the sender of the unsolicited
advertisement not to send any future unsolicited
advertisements to a telephone facsimile machine or
machines and that failure to comply, within the
shortest reasonable time, as determined by the
Commission, with such a request meeting the
requirements under subparagraph (E) is unlawful;
“(iii) the notice sets forth the requirements for a
request under subparagraph (E);
“(iv) the notice includes—
“(I) a domestic contact telephone and facsimile
machine number for the recipient to transmit
such a request to the sender; and
“(II) a cost-free mechanism for a recipient to
transmit a request pursuant to such notice to
the sender of the unsolicited advertisement;
the Commission shall by rule require the sender
to provide such a mechanism and may, in the
discretion of the Commission and subject to
such conditions as the Commission may
prescribe, exempt certain classes of small
business senders, but only if the Commission
determines that the costs to such class are
unduly burdensome given the revenues generated
by such small businesses;
“(v) the telephone and facsimile machine numbers and
the cost-free mechanism set forth pursuant to clause
(iv) permit an individual or business to make such a
request at any time on any day of the week; and
“(vi) the notice complies with the requirements of
subsection (d);”.
Junk Fax Prevention Act of 2005, § 2(c).

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The parties do not dispute that the JFPA was enacted
on July 9, 2005 (prior to the June 17, 2006 fax transmission at
issue here) or that the regulations subsequently promulgated by
the Federal Communications Commission concerning the opt-out
notice required by section 227(b)(2)(D)-- as amended by the JFPA
-- became effective on August 1, 2006 (after the June 17, 2006
fax transmission at issue here).

As the parties each recognize,

“[i]t is well-established that, absent a clear direction by
Congress to the contrary, a law takes effect on the date of its
enactment.”

Gozlon-Peretz v. United States, 498 U.S. 395,

111 S.Ct. 840, 112 L.Ed.2d 919 (1991).
Plaintiff contends that the JFPA contains no such
clear direction from Congress and, accordingly, that the optout-notice requirement imposed by sections 227(b)(1)(C)(iii) and
227(b)(2)(D) took effect immediately upon enactment of the JFPA
and prior to the June 17, 2006 fax transmission at issue in this
case.
Defendants contend that the JFPA contains a clear
directive from Congress that the amendments to section 227
provided in the JFPA (including the opt-out-notice requirement)

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would not take effect until regulations promulgated by the FCC
pursuant to the JFPA became effective. 89
Section 2(h) of the JFPA provides: “REGULATIONS.—
Except as provided in section 227(b)(2)(G)(ii) of the
Communications Act of 1934 (as added by subsection (f)), not
later than 270 days after the date of enactment of this Act, the
Federal Communications Commission shall issue regulations to
implement the amendments made by this section.”

JFPA, § 2(h).

While defendants are correct (and plaintiff does not
contest) that the JFPA created a mandatory obligation on the FCC
to promulgate regulations implementing the JFPA’s amendments to
the TCPA, it is similarly undisputed that Congress did not state
explicitly in the JFPA that the obligations established in
section 227(b)(1)(C) of the TCPA by the JFPA would not take
effect until any such implementing regulations subsequently
promulgated by the FCC became effective.
When defendants sought leave at the class certifycation hearing to brief the issue of the applicability and
effective-date of the opt-out-notice requirement, counsel for
defendant EPSI suggested that defendants would present authority
89

However, I note that defendant Taylor previous stated -- as part
of her argument that the established-business-relationship presents an
individualized issue which predominates -- that a fax advertisement “also
needs to have an ‘opt-out’ [notice], which the fax at issue here did.”
(Taylor Memorandum at page 9.) This contention is somewhat at odds with
defendant Taylor’s subsequent argument that no opt-out notice was required at
the time the fax at issue was sent.

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clearly and unequivocally demonstrating that the opt-out-notice
requirement in section 227(b)(1)(C)(iii) did not take binding
effect until the implementing regulations became effective on
August 1, 2006. 90
Instead, defendants’ joint memorandum on this issue
relied upon the general proposition set forth by the United
States Supreme Court in Gozlon-Peretz, supra; the Opinion of the
United States Court of Appeals for the Second Circuit in Sweet
v. Sheahan, 235 F.3d 80 (2d Cir. 2000), which addressed the
effective-date of certain lead-paint disclosure requirements;
and a dissent by Associate Justice Richard M. Mosk of the Court
of Appeal of California, Second Appellate District in McCarthy
v. CB Richard Ellis, Inc., 94 Cal.Rptr.3d 109, 127-132
(Cal.Ct.App. 2009), which relied substantially upon Sweet,
supra, and analogized the JFPA to the lead-paint disclosure
statute at issue in Sweet.
Plaintiff’s post-hearing memorandum concerning the
effective date of the opt-out-notice requirement similarly opens
with the Gozlon-Peretz, supra.

However, plaintiff then proceeds

to effectively distinguish the statutory provision at issue in
Sweet from section 2(c) of the JFPA (which requires the opt-out-

90

Transcript of Hearing on Plaintiff’s Motion [for Class
Certification Held] Before the Honorable Judge James Knoll Gardner on
November 8, 2013 (Document 132), at pages 76-77.

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notice as a necessary requirement to eliminate liability for an
otherwise-unsolicited fax advertisement). 91
In addition to distinguishing Sweet, plaintiff
advances the Opinion of the Court of Appeals of Ohio, Sixth
District in Cardinal Partners, Ltd. v. Fernandez Discipline,
LLC, 2010 WL 4683700 (Ohio Ct.App. Nov. 19, 2010), to support
the proposition that the opt-out notice became effective
immediately upon enactment of the JFPA.
Although the trial court there did rule that both the
existing-business-relationship defense and the opt-out-notice
requirement did not become effective until August 1, 2006, the
appellate court did not resolve the issue disputed here.
Rather, the Ohio intermediate appellate court concluding that
“[w]hether we apply the [FCC] rules extant from the time of the
TCPA or look to the law as established by the JFPA, an
established business exception to the junk fax advertisement ban
existed at the time [defendant] sent its fax.”

Cardinal

Partners, 2010 WL 4683700, at *6, ¶ 35 (emphasis added).
91

Plaintiff does so by noting that the statute at issue in Sweet
did not actually impose any direct obligations or duties upon sellers and
lessors of property to disclose information concerning lead paint, but rather
imposed an obligation upon the United States Environmental Protection Agency
to promulgate regulations requiring the disclosure of information concerning
lead-paint hazards.
By contrast, according to plaintiff, the requirements for the
opt-out-notice are set forth in the TCPA as amended by the JFPA, 47 U.S.C.
§ 227(b)(1)(c), (2)(D)(E).
Therefore, plaintiff argues, the June 17, 2006
fax advertisement was required to satisfy the opt-out-notice requirement
provided in the statute, prior to the effective date of any future
regulations.

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The above is set forth at some length to say that the
parties have not identified any binding (or highly persuasive)
authority concerning the effective date of the opt-out-notice
requirement.

Moreover, the dispute between the parties

concerning the applicability of the opt-out-notice requirement
to the June 17, 2006 fax transmission is substantially less
clear-cut than suggested by the parties at the hearing or in
their post-hearing memoranda.
In light of the foregoing, and because the question of
whether certain class members had an existing business
relationship with defendants at the time of the June 17, 2006
fax would not predominate over the common questions presented
here even if defendants are correct and they are not foreclosed
from asserting the established business relationship exception
as the result of an insufficient opt-out notice, see Reliable
Money I, 281 F.R.D. at 330, I decline to resolve that dispute at
this time. 92
For all of the reasons expressed above, I conclude
that common questions predominate in this matter.

92

Although not discussed by either party concerning the opt-outnotice issue, I note that in Gene and Gene I, the Fifth Circuit stated that
the JFPA materially amended the TCPA and the Fifth Circuit identified July 9,
2005 as the “effective date” of the amendments to the TCPA affected by the
JFPA, Gene and Gene I, 541 F.3d at 322 n.1, suggesting that the opt-outnotice requirements set forth in the statute itself became effective upon
enactment.

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Superiority
An Opinion of United States District Judge Catherine
D. Perry provides a thoughtful and concise discussion of the
superiority issue as it pertains to a TCPA unsolicited-fax
action, and I adopt and incorporate her ruling and analysis
here.

See St. Louis Heart Center, Inc. v. Vein Centers for

Excellence, Inc., 2013 WL 6498245, at *10-11 (E.D.Mo. December 11, 2013).
The second prong of the Rule 23(b)(3) type
of class action requires the class action to be
“superior to other available methods for fairly and
efficiently adjudicating the controversy.” The
Supreme Court has stated that the policy consideration
behind Rule 23(b)(3) is “to overcome the problem that
small recoveries do not provide the incentive for any
individual to bring a solo action prosecuting his or
her rights.” [Amchem Products, Inc. v. Windsor, 521
U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689
(1997)].
Factors relevant to a court's inquiry into
superiority include: the class members' interests in
individually controlling the prosecution or defense of
separate actions; the extent and nature of any
litigation concerning the controversy already begun by
or against the class members; the desirability or
undesirability of concentrating the litigation of the
claims in the particular forum; and the likely
difficulties in managing a class action. See
Fed.R.Civ.P. 23(b)(3)(A)-(D). In this case, there is
no evidence that other duplicative litigation is
ongoing. Because the statutory damages available to
each individual class member are small -- at most
$1500 per violation -- it is unlikely that the class
members have interest in individually controlling the
prosecution of separate actions. This action involves
thousands of plaintiffs, each with a relatively small,
nearly identical claim, who might not otherwise seek
or obtain relief absent a class action. This court
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will only need to apply federal law, not multiple
state laws. Although there may be some administrative
tasks for the parties, such as matching fax numbers to
updated contact information, that is not enough to
outweigh the benefits of treating these claims all
together. All in all, a class action is superior to
other methods of adjudicating this controversy.
St. Louis Heart Center, 2013 WL 6498245, at *10-11.

CONCLUSION
For all of the reasons expressed above, I grant
Plaintiff’s Motion for Class Certification and certify the
proposed class.

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