United States District Court, E.D. Missouri, Eastern Division
ST. LOUIS HEART CENTER, INC., individually and on behalf of all others similarly situated, Plaintiff,
VEIN CENTERS FOR EXCELLENCE, INC., Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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).
Heart Center as the named representative, I certified a class
under Rule 23, Fed.R.Civ.P., with the following class
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
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.
Impact of Spokeo and Sandusky on Class
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.
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.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
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