City Select Auto Sales, Inc. v. David Randall Associates, Inc.
2013 U.S. Dist. LEXIS 178950
| D.N.J. | 2013Background
- This is a putative TCPA class action by City Select Auto Sales against David Randall Associates and Raymond Miley III for unsolicited fax advertisements in 2006.
- Plaintiff seeks class certification under Rule 23(b)(3); central issues include adequacy of class counsel/representative and whether certification is appropriate.
- David Randall used B2B to broadcast faxes to 29,113 unique numbers across zip codes; expert confirms 44,382 faxes were sent on defendants’ behalf.
- City Select received faxes on April 4 and May 15, 2006; Pellegrini, City Select’s president, has a history of opposing junk faxes but lacks precise recollection of this case’s faxes.
- Defendants’ theory of discovery misconduct by plaintiff’s counsel is argued, including alleged improper procurement of the hard-drive data from B2B resources.
- Court previously stayed/then lifted stays pending Third Circuit guidance on § 227(b)(3); the court ultimately proceeds with renewed class certification analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of named plaintiff | B2B transmission logs show valid injury to the class. | Plaintiff Pellegrini lacks memory of receipts, challenging standing. | City Select has standing; logs and transmission evidence suffice. |
| Federal law governs class certification | TCPA class issues fall under federal law post-Mims. | New Jersey state law governs TCPA class certification. | Federal law governs; § 227(b)(3) allows federal TCPA class treatment. |
| Ascertainability and class definition | 29,113 numbers and B2B logs create a definable class. | Class is not ascertainable due to potential recipients and consent issues. | Class is ascertainable based on the list of successfully transmitted numbers. |
| Predominance and commonality | Mass fax campaign creates a common core; consent issues do not predominate. | Individual consent/relationships may predominate. | Common questions predominate; certification appropriate. |
| Adequacy of class representative and class counsel | Pellegrini and proposed counsel adequately represent the class. | Counsel’s conduct and retainer arrangements render adequacy doubtful. | City Select and proposed counsel are adequate for certification. |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 2469 (S. Ct. 2012) (federal TCPA authority; post-Mims interpretation of § 227(b)(3))
- Landsman & Funk, P.C. v. Skinder-Strauss Associates, 640 F.3d 72 (3d Cir. 2011) (consent as common question in TCPA class actions)
- In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (Rule 23 findings require preponderance evidence)
- CE Design Ltd. v. Cy’s Crabhouse N., Inc., 259 F.R.D. 135 (N.D. Ill. 2009) (receipt proof not required for TCPA standing; logs suffice)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing elements: injury, causation, redressability)