APB Associates, Inc. v. Bronco's Saloon, Inc.
297 F.R.D. 302
E.D. Mich.2013Background
- Denied class certification in three TCPA actions after hearings on March 14, 2013.
- Opinion relies on Reliable Money Order, Inc. v. McKnight Sales Co. for misconduct but not prejudicing certification.
- Three cases involve Carroll/Abraham/B2B-fax campaigns: Machesney, APB Associates, Compressors Engineering.
- Plaitiffs allege defendants hired B2B to send unsolicited faxes to thousands of numbers.
- Court analyzes Rule 23 prerequisites and the need for a rigorous, fact-based ascertainability and standing.
- Court ultimately denies class certification due to ascertainability, standing, and individualized defenses such as EBR/consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the proposed class ascertainable. | Machesney/APB/Compressors argue numbers identify class. | Defendants say class is imprecise and requires individualized inquiries. | No; definitions are imprecise and not administratively feasible. |
| Who has standing to sue under TCPA in these faxes? | Plaintiffs allege recipients own or are entitled to sue. | Ownership of fax machine/matter of standing contested. | Owner of the fax machine has standing; class must reflect statutory standing. |
| Do TCPA defenses (consent/EBR) defeat predominance under Rule 23(b)(3)? | Unsolicited fax claims predominate across class. | Consent/EBR defenses require individualized inquiries. | Yes; predominance defeated due to need for individualized inquiries. |
| Are the named plaintiffs and proposed class counsel adequate? | Counsel have basic qualifications; ethics concerns acknowledged. | Ethical concerns raise serious doubt about adequacy. | Adequacy not cured by multiple plaintiffs; other grounds compel denial. |
| Would modifying the class definitions to fix standing resolve certification? | Definitions can be narrowed to those with standing. | Even with modification, individualized inquiries persist and preclude class treatment. | Modification insufficient; certification denied. |
Key Cases Cited
- Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489 (7th Cir. 2013) (discusses ethics and class adequacy in TCPA actions)
- In re American Medical Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) (rigorous analysis required for Rule 23(a) certification; overlap with merits)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (S. Ct. 2011) (establishes framework for Rule 23; predominance requires common questions)
- Critchfield Phys. Therapy v. Taranto Group, Inc., 293 Kan. 285, 263 P.3d 767 (2011) (class definition must be precise to avoid multiple claims per fax)
- Mims v. Arrow Fin. Servs., LLC., 132 S. Ct. 740 (U.S. 2012) (TCPA statutory framework and standing considerations)