Missouri District Court Denies Class Certification, Concluding Predominance and Superiority Absent

Evans & Green, LLP v. That's Great News, LLC, No. 11-3340-cv-s-ODS, 2012 WL 4888471 (W.D. Mo. Oct. 15, 2012) Plaintiff law firm filed a class action complaint against an individual and corporate Defendant alleging that Defendants sent numerous unsolicited facsimile advertisements during a four-year period, specifically alleging that Defendants sent 105,826 faxes in the month of March, 2010, three of which were received by Plaintiff. The case was removed to federal court, after which time defense counsel withdrew. After warning the corporate Defendant that counsel must be retained, and the corporate Defendant failing to comply with the court's instruction, a default was entered against it. Pending before the court was Plaintiff's Motion for Class Certification. After holding that Plaintiff met the preliminary requirements necessary for class certification, the court nonetheless concluded that certification was inappropriate. Specifically, the Court held that Rule 23(b)(2) certification was not appropriate because Plaintiff sought monetary relief. The court also found that Rule 23(b)(3) certification was not appropriate because the predominance and superiority requirements were not satisfied. With respect to the predominance requirement, the court noted that there are "numerous individual factual issues, including: (1) whether each individual fax was solicited or unsolicited; and (2) whether each fax recipient had an established business relationship with Defendant. Resolving these individual issues in an single forum would require an abundant amount of time and resources. In contrast the common issues do not predominate over the individual issues. However, these common issues do not predominate over the individual issues." The court also found that the superiority requirement was not satisfied because: (1) effective notice could not be provided; and (2) it is not desirable to concentrate litigation in this forum. Specifically, notice must be reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The court rejected the possibility of notice by publication, stating that "there is no reason to believe that notification by publication will be sufficient. Plaintiff has only provided an invoice indicating the alleged quantity of faxes sent by Defendants. The invoice does not include the identities of the recipients, the recipients' fax numbers or mailing addresses, nor does Plaintiff provide the source of numbers selected to receive the fax. Plaintiff is unable to provide individual notice to any of the class members, thus resorting to publication for all members. In this court's experience, publication will be inadequate in this case." The court also believed it was undesirable to concentrate the litigation before the court because Defendants were from another state, Plaintiff was one single recipient of the more than 100,000 faxes sent and Plaintiff failed to provide information identifying the location of other recipients of the faxes. Moreover, the court thought it would be unlikely that class members would travel great distances to present proof on the individual issues--particularly in light of the $500 statutory damages. As a result, the Plaintiff's class certification motion was denied.

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