Critchfield Physical Therapy v. Taranto Group, Inc.
263 P.3d 767
| Kan. | 2011Background
- This is an interlocutory appeal from an order certifying a class of TCPA plaintiffs against Taranto Group, Inc.
- Taranto used two outside vendors to fax advertisements (AmeraScope 2005–2006; Westfax 2007–2008) without Taranto reviewing databases or logs.
- Some targets may have consented or had prior business relationships, but the record is incomplete on this point.
- Plaintiff Critchfield intervened as class representative; Aestheticare was dismissed; Geismann was replaced by Critchfield as representative.
- District court certified the class and authorized interlocutory appeal; Kansas Supreme Court reviews for abuse of discretion under 60-223.
- TCPA context: federal statute with private damages, treble damages for willful/knowing violations, and state-court remedies; Junk Fax Prevention Act later clarified established business relationship defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for class certification | Critchfield argues district court properly performed rigorous analysis under 60-223. | Taranto contends rigorous analysis requires more than prima facie proof per Dragon I. | District court properly conducted rigorous analysis; abuse of discretion not shown. |
| Commonality and predominance despite consent/relationship defenses | Common questions exist on mass faxing and TCPA violations; class may include members with no consent evidence. | Consent/established relationship defenses destroy commonality and predominate. | Commonality and predominance satisfied; defenses can be managed and individual issues limited. |
| Definition/ascertainability of the class | End users of fax numbers identify a group with common characteristics; certification appropriate. | Class definition like 'end users' is imprecise; may require modification. | Class defined with need for clarification; district court should modify to clarify members. |
| Superiority and damages paradigm under 60-223(b)(3) and TCPA | Class action is superior due to small individual damages and deterrence goals; multiple small claims would be inefficient. | Individual actions could be many; potential for annihilating judgments; small claims could be superior. | Class action superior; monetary damages allowed under 60-223(b)(1)(A); not defeated by potential large judgments. |
Key Cases Cited
- Dragon v. Vanguard Industries, Inc. (Dragon II), 282 Kan. 349 (Kan. 2006) (set forth the four factors for class certification and related standards)
- Display South v. Express Computer Supply, 961 So.2d 451 (La. App. 2007) (class action purely procedural; certification not need merits proof)
- Lampkin v. GGH, Inc., 146 P.3d 847 (Okla. Civ. App. 2006) (defenses like permission/relationship do not defeat commonality)
- Sadowski v. Med1 Online, LLC., 2008 WL 2224892 (N.D. Ill. 2008) (good faith estimate of class size acceptable when records missing)
- Turner v. Bernstein, 768 A.2d 24 (Del. Ch. 2000) (monetary damages may be appropriate under 23(b)(1)(A) when applicable)
- In re Dennis Greenman Securities Litigation, 829 F.2d 1539 (11th Cir. 1987) (limits of 23(b)(1)(A) in damages contexts discussed)
- Circle v. Jim Walter Homes, Inc., 535 F.2d 583 (10th Cir. 1976) (damages consideration not a bar to class certification)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (structural requirements for class actions under Rule 23[a])
- Amchem Products, Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (focus on class action design to achieve deterrence and efficiency)
- Turner v. Bernstein, 768 A.2d 24 (Del. Ch. 2000) (monetary damages under class action framework can be appropriate)