Chi-Town Pizza Eliminates Class Certification in TCPA Suit
The Phone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), prohibits the transmission of “an unrequested fax advertisement.” Rosen Family Chiropractic care (“Rosen”) sued against Chi-Town Pizza on Div. St. (“Chi-Town Pizza”) within the Northern District of Illinois, alleging he had received an unrequested fax, and searched for to represent a type of 106 similarly situated people who’d allegedly received roughly 3,000 similar faxes. On Feb 14, 2015, the District Court refused Rosen’s motion for sophistication certification. Rosen Family Chiropractic care v. Chi-Town Pizza on Div. St., No. 11 C 6753, 2015 U.S. Dist. LEXIS 18366 (February. 14, 2015).
In denying class certification, the District Court held that Rosen’s claim was atypical of putative class people because the fax that Rosen had received was diverse from the category people who have been later recognized on the separate fax transmission log. Since the fax Rosen received was diverse from individuals from the putative class people, and since Chi-Town Pizza’s liability defense was different with regards to the fax that Rosen received (which Chi-Town Pizza contended didn’t promote its services), the District Court came to the conclusion that “the atypicality of [Rosen’s] claim impairs his capability to represent a class” under Given. R. Civ. P. 23(a)(3) and (a)(4).
The District Court also held that Rosen hadn’t proven numerosity or the presence of an ascertainable class required to obtain class certification. While Rosen alleged he had received a fax from Chi-Town Pizza, its phone number was this is not on the fax transmission log that Rosen searched for to recognize putative class people. The District Court declined Rosen’s declare that class people were therefore identifiable, concluding:
[T]he absence of Rosen’s fax number from the log he uses to identify class members means that the log, in fact, does not identify the members of the class. For if Rosen is to be considered a class member despite his number’s absence from the log, the log tells us little about what other absent recipients are nevertheless class members, rendering the class indefinite.
Accordingly, the District Court refused class certification. Rosen also gone to live in amend his class definition so that they can cure the defects within the suggested class, however the District Court refused Rosen’s motion to amend for the reason the suggested amended definition still didn’t cure the defects which warranted denial of sophistication certification.