CE Design Ltd. v. King Architectural Metals, Inc.
637 F.3d 721
| 7th Cir. | 2011Background
- CE Design sues King Architectural Metals under the TCPA for allegedly unsolicited faxes; class certification is contested in a suit with potential treble damages for willful violations.
- The district court certified a class of unconsenting recipients for King’s fax advertisements.
- CE Design is portrayed as the named representative with a credibility issue centered on its president Pezl and consent to receive faxes.
- Pezl testified about authorization to publish CE’s fax number in the Blue Book; district court deemed that immaterial to class certification.
- The Blue Book and CE’s website publication of the fax number, plus Blue Book editor testimony, raise questions about consent under the TCPA.
- The Seventh Circuit vacates and remands, requiring reconsideration of CE as class representative based on adequacy and typicality concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CE is an adequate class representative | CE is typical and adequate | Pezl credibility defects and consent defense undermine adequacy | CE not adequate; credibility/consent issues substantive |
| Whether CE's claim is typical of the class | CE’s claims representative the class | Defense of invitation/permission may not apply to all members | Typicality not satisfied; need reevaluation of representative |
| Whether a consent/permission defense defeats certification | Consent defense could apply broadly | CE invited/permits faxes via Blue Book/website | Consent issue central; requires further proceedings on class-wide consent |
| Whether to vacate and remand the class certification | Certification should stand | Certification should be revisited given adequacy/typicality problems | Vacate and remand for reconsideration consistent with this opinion |
Key Cases Cited
- General Telephone Co. v. Falcon, 457 U.S. 147 (Supreme Court, 1982) (rigorous analysis required for class certification under Rule 23(a))
- Ervin v. OS Restaurant Services, Inc., 632 F.3d 971 (7th Cir.2011) (review of certification is deferential but not abject)
- Parker v. Astrue, 597 F.3d 920 (7th Cir.2010) (describes deference to class-certification rulings)
- In re Schering Plough Corp. ERISA Litigation, 589 F.3d 585 (3d Cir.2009) (adequacy/typicality considerations in class actions)
- Murray v. GMAC Mortgage Corp., 434 F.3d 948 (7th Cir.2006) (questions of credibility and adequacy of class representative)
- Koos v. First National Bank of Peoria, 496 F.2d 1162 (7th Cir.1974) (adequacy concerns regarding named representative)
- Schleicher v. Wendt, 618 F.3d 679 (7th Cir.2010) (significance of representative credibility in certification)