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

United States District Court, E.D. Missouri, Eastern Division

February 7, 2017

ST. LOUIS HEART CENTER, INC., individually and on behalf of all others similarly situated, Plaintiff,
v.
VEIN CENTERS FOR EXCELLENCE, INC., Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Plaintiff St. Louis Heart Center, Inc. brought this action under the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C), alleging that defendant Vein Centers for Excellence, Inc., a marketing firm that provides graphic design and other services to doctors, sent “junk faxes” to Heart Center and thousands of others. I certified a class under Rule 23, Fed.R.Civ.P., with Heart Center as the named representative. Notice was sent to potential class members and one opt out was returned. Plaintiff Heart Center has now filed for summary judgment seeking statutory damages for 35, 211 unsolicited fax transmissions.

         I granted Vein Centers leave of court to brief the impact of two recent court decisions on continued class certification in this case. The court decisions do not mandate the decertification of the class here; however, based on the evidence before the court, no absent class member can prove class membership. Additionally, disputes of fact remain with regard to the named class representative. Plaintiff's motion for summary judgment will be denied.

         Background

         Around 2007 or 2008, defendant Vein Centers created form advertisements to be sent by fax. From various third parties, Vein Centers had obtained lists of thousands of fax numbers belonging to doctors and medical centers. Vein Centers sent the advertisements to fax broadcaster Westfax and instructed Westfax to send them out to the numbers on the lists. Before sending the lists of numbers to Westfax, Vein Centers' marketing coordinator Misty Mitra manually removed the numbers of Vein Centers' existing customers. Vein Centers did not call anyone on the lists to seek permission to send out the faxed advertisements, and it solely determined the target fax numbers to which the advertisements were sent. Per Vein Centers' instructions, Westfax faxed the advertisements. In total, Vein Centers hired Westfax to conduct 10 fax broadcasts, including one test. Westfax charged Vein Centers for 35, 212 successful transmissions, but did not provide a list of the fax numbers which received the advertisements.

         Plaintiff Heart Center is a corporation owned by cardiologist Ronald Weiss. It claims to have received multiple fax advertisements from Vein Centers, including one that was part of a Westfax fax broadcast that went to over five thousand cardiologists on September 15, 2009. ECF No. 83 at ¶ 34. However, the Heart Center fax submitted as evidence looks to be dated “9/15/08, ” and Dr. Weiss testified in his deposition that he received it on September 15, 2008. ECF No. 5-4; ECF No. 83-2 at 34:6-36:22.

         Heart Center filed this suit under the TCPA on behalf of itself and others who received fax advertisements from Vein Centers. Among other things, the TCPA “proscribes sending unsolicited advertisements to fax machines” unless they meet certain exceptions. Mims v. Arrow Fin. Servs. LLC, 132 S.Ct. 740, 745 (2012) (citing 47 U.S.C. § 227(b)(1)(C)). “The term ‘unsolicited advertisement' means 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). The TCPA “imposes, on anyone who sends an unsolicited fax advertisement, statutory damages of $500 per fax, which can be trebled if the court finds that the violation was willful or knowing.” Sandusky, 821 F.3d at 997 (quoting Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 914 (7th Cir. 2011)); see also 47 U.S.C. § 227(b)(1)(C), (b)(3).

         With Heart Center as the named representative, I certified a class under Rule 23, Fed.R.Civ.P., with the following class definition:

All persons or entities who, between January 15, 2008 and September 15, 2009, were sent one or more telephone facsimile messages by Westfax on behalf of Vein Centers for Excellence, Inc. that did not inform the fax recipient both that (1) he or she may make a request to the sender of the advertisement not to send any future facsimile advertisements and that (2) failure to comply with the request, within 30 days, is unlawful.

         Subsequently, the Eighth Circuit denied permission to Vein Centers to appeal the class certification decision. However, I stayed this action pending the resolution of the potentially-relevant Eighth Circuit case Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015). Following the appellate court's ruling in Golan, I affirmed the certified class definition and found any potential class member to have standing to bring suit. See ECF No. 73. Using the lists of fax numbers that Vein Centers provided to Westfax for the unsolicited fax broadcasts (which include all the fax numbers that transmission was attempted to - not just the ones that transmission was successful to), class notice was sent to potential class members by fax and then U.S. Mail, if necessary. In response, one class member requested exclusion from the class.

         Discussion

         A. Impact of Spokeo and Sandusky on Class Certification

         Vein Centers was granted leave to brief the impact of two recent court decisions, Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), and Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 821 F.3d 992 (8th Cir. 2016), on continued class certification in this case.

         In Spokeo, a consumer brought an action under the Fair Credit Reporting Act after learning that a “people search engine” website was disseminating incorrect personal information about him. 136 S.Ct. at 1544. After the district court dismissed the complaint for lack of standing, the Ninth Circuit reversed and found the consumer had adequately alleged injury in fact, as required for Article III standing.[1]Id. In its review, the Supreme Court took no position on whether the Ninth Circuit was correct in ruling that the consumer had alleged injury in fact. Id. at 1550. Instead, the Court reminded the lower court that injury in fact requires a plaintiff to allege an injury that is both “concrete and particularized.” Id. at 1545 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 ...


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