Eighth Circuit Articulates New Ascertainability Standard in TCPA Class Actions

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller, Courtney E. Torres

The Eighth Circuit Court of Appeals recently reversed a trial court’s decision not to certify a TCPA class on grounds that the proposed class was not ascertainable. In so doing, the Eighth Circuit declined to adopt the Third Circuit’s heightened standard for ascertainability as a “separate, preliminary requirement” for class certification.  In the published opinion, the Court articulated its own “rigorous analysis of Rule 23 requirements, which includes that a class ‘must be adequately defined and clearly ascertainable.’”

In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., Plaintiff alleged that MedTox, a toxicology lab, transmitted a single-page fax to approximately 3,000 fax numbers, all recorded onto a log in the plaintiff’s possession.  Plaintiff moved to certify a class that included all people in the four years prior to the action’s filing who received a fax message from Medtox regarding lead testing services that did not display a proper opt-out notice.  The district court, in denying class certification, held the plaintiff failed to show ascertainability because it could not establish who was included in the class.  The trial court focused on the potential for multiple claimants with respect to individual faxes, noting that the class could be seen as including both the subscriber of the telephone line on which the fax was received, and the intended recipient of the fax.

The Eighth Circuit reversed, holding that “the recipient is the person or entity that gets the fax,” and that “[t]he best objective indicator of the ‘recipient’ of a fax is the person who subscribes to the fax number.” The Circuit Court acknowledged that in particular circumstances, the recipient might be someone different from the subscriber, but nonetheless found that because there was a fax log showing all the numbers that received a fax from Medtox, Plaintiff had satisfied the “clearly ascertainable” requirement under Rule 23.

While courts have incorporated into Rule 23(b) an implied demand that the proposed class members be ascertainable, the meaning of ascertainability continues to differ depending on the jurisdiction. A recent decision out of the Third Circuit, Byrd v. Aaron’s Inc., implemented a heightened test for ascertainability, creating a two-part inquiry that requires a plaintiff to demonstrate that “the class is defined with reference to objective criteria; and [that] there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”  The Third Circuit differs from the remaining circuit courts in its emphasis on an administratively simple way to identify the class members.  That analysis is significantly stricter than that adopted by the Seventh Circuit in Mullins v. Direct Digital, LLC.  There, the Seventh Circuit found a heightened ascertainability standard prejudicial to proposed class actions, where administrative evidence is hard to come by, and felt that such a test would bar the plaintiffs most in need of protection, such as cases involving relatively low-cost goods or services where consumers are unlikely to have documentary proof of purchase.

The Medtox Scientific opinion illustrates the Eighth Circuit’s preference to implement an analysis based on the language of Rule 23, requiring only that a class be adequately defined and clearly ascertainable, and not requiring plaintiffs to demonstrate a clear administrative solution for determining class membership.

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