The United States District Court for the Eastern District of Missouri recently granted class certification of an opt-out only junk fax class in St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc., No. 12-cv-174 (E.D. Mo. Dec. 12, 2013). In so doing, the Court soundly rejected several common defenses asserted in TCPA class actions, making such cases even more onerous to defend.
Background
In 2008 and 2009, Vein Centers for Excellence, Inc. (“Vein Centers”) sent over 35,000 fax advertisements to doctors and medical centers, whose fax numbers it had obtained from various third-parties. Each of the faxes had an opt-out notice; however, the notice did not contain all of the detailed language set forth in the relevant Code of Federal Regulations.
On September 15, 2009, Plaintiff St. Louis Heart Center, Inc. (“Heart Center”), a serial TCPA Plaintiff brought a putative class action against Vein Centers on behalf of all persons or entities who received a fax from Vein Centers with a non-compliant opt-out notice, regardless of whether the fax was “unsolicited” within the meaning of the TCPA. Slip Op. at 8.
Opinion
Vein Centers made several arguments in opposition to Heart Center’s motion for class certification, raising a number of commonly asserted defenses including: (1) Congress did not envision the TCPA to be used as a class action vehicle; (2) lack of ascertainability; (3) lack of typicality; (4) class scope should be limited to the single date of faxing; (5) variance in state laws; and (6) unconstitutionality of a class damages award. The Court, in turn, rejected each argument.
No Clear Expression of Congressional Intent to Exempt Class Actions
First, the Court rejected Defendant’s argument...
