Avio, Inc. v. Alfoccino, Inc.
311 F.R.D. 434
E.D. Mich.2015Background
- Plaintiff (Avio) alleges Alfoccino hired B2B to send ~13,980 identical advertising faxes in 2006 to 7,625 unique fax numbers in violation of the TCPA (47 U.S.C. § 227).
- B2B was a third-party fax broadcaster whose transmission logs and recipient lists were produced in litigation; plaintiffs’ counsel used those objective records to identify putative class members.
- District court originally granted summary judgment for defendant on standing and liability grounds; the Sixth Circuit reversed, holding plaintiffs had Article III standing and that TCPA can impose direct liability on advertisers whose goods/services are advertised even if a third party broadcast the fax.
- After remand, plaintiff moved to certify a class of all persons sent the Alfoccino coupon faxes on three November/December 2006 dates; defendant opposed certification on ascertainability, consent defenses, and adequacy grounds and requested further discovery.
- The court conducted the Rule 23 rigorous analysis, found the B2B fax logs constitute objective criteria for class membership, and concluded Rule 23(a) and 23(b)(3) requirements (numerosity, commonality, typicality, adequacy, predominance, superiority) were satisfied.
- Court certified the class and appointed Anderson + Wanca, Sommers Schwartz, and Bock & Hatch as class counsel; ordered submission of a Rule 23(c) notice plan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ascertainability of class | Class is defined by objective B2B fax logs (fax numbers/dates) so members are identifiable | Fax lists are old/outdated; many recipients unidentifiable; consent/EBR defenses require individualized inquiry | Class is ascertainable: B2B records provide objective criteria and administrative feasibility; age of lists not fatal |
| Article III standing (context from Sixth Circuit) | Avio need not have printed/viewed fax; injury in receiving unwanted fax suffices | Plaintiff lacked personal knowledge/possession of fax so lacked standing | Sixth Circuit held plaintiffs have standing even without having printed/viewed the fax; district court proceeded accordingly |
| Predominance under Rule 23(b)(3) | Core issues (whether faxes were advertisements, liability under TCPA, willfulness) are common and predominate | Individualized consent/established business relationship defenses will predominate and require individualized proof | Common legal/factual questions arising from single fax campaign predominate; individualized consent defenses not dispositive of predominance |
| Superiority and efficiency of class action | Large number of low-value claims favors class action; individual suits impractical | Individualized inquiries make class device inefficient | Class action is superior given number of claimants, similarity of claims, and “negative value” nature of TCPA claims |
| Adequacy of representative & class counsel | Avio’s interests align with class; counsel experienced in TCPA/B2B litigation | Avio lacks personal knowledge of receipt; counsel’s methods of obtaining B2B data allegedly suspect | Representative adequate despite not having viewed the fax; counsel appointed based on experience and resources; past criticisms do not disqualify them |
Key Cases Cited
- Imhoff Inn., L.L.C. v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (Sixth Circuit reversed on standing and direct liability under TCPA; guided remand)
- Am. Copper & Brass, Inc. v. Lake City Indus. Prods., 757 F.3d 540 (6th Cir. 2014) (fax-number records suffice for ascertainability; standing in similar B2B context)
- APB Assocs., Inc. v. Bronco's Saloon, Inc., 297 F.R.D. 302 (E.D. Mich. 2013) (denied certification where class lists were outdated and individualized consent/EBR defenses were problematic)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (Rule 23 commonality/rigorous analysis framework)
- Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455 (2013) (plaintiff need not prove common questions will be answered in its favor at certification)
- Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004) (sheer size of class can satisfy numerosity)