Machesney v. Lar-Bev of Howell, Inc.
2013 U.S. Dist. LEXIS 57080
| E.D. Mich. | 2013Background
- This action involves TCPA claims and the court DENIES Plaintiffs' Motion for Class Certification.
- The Seventh Circuit in Reliable Money Order, Inc. v. McKnight Sales Co. scrutinized Anderson + Wanca's conduct but did not require denial of class certification on ethics alone.
- The TCPA imposes strict liability for unsolicited faxes, with liability for the sender and potential treble damages for willfulness.
- B2B data and 13213 records were used to identify potential clients, leading to numerous related TCPA actions.
- Three pending TCPA actions before this court—Machesney, APB Associates, and Compressors Engineering—propose similar class definitions and issues.
- The court identifies major issues: ascertainability of the class, statutory standing (ownership of the receiving fax machine), and individualized defenses like consent/EBR; it also notes ethical concerns with class counsel but finds they do not alone defeat certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the proposed classes ascertainable? | Machesney argues the lists and dates yield definite members. | Defendants contend the definitions are amorphous and require individualized determinations. | Not ascertainable; definitions are imprecise and amophous. |
| Do proposed class members have statutory standing under the TCPA? | Owners of the fax machines alleged to have received faxes should sue. | Ownership/standing is uncertain and may vary; need precise owner identification. | Standing requires ownership of the fax machine; definitions must reflect ownership. |
| Do consent/established business relationship defenses defeat predominance? | Large-group, uniform conduct supports class treatment despite defenses. | Consent/EBR defenses require individualized inquiries; predomination fails. | Yes, individualized defenses preclude predominance. |
| Should the court deny certification based on class counsel ethics? | Ethical concerns exist but do not mandate denial where multiple firms exist. | Counsel's misconduct undermines adequacy. | Ethics alone do not warrant denial; other Rule 23 factors control. |
Key Cases Cited
- Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489 (7th Cir. 2013) (ethics may raise serious doubt about adequacy; does not mandate denial if not prejudicial)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (rigorous analysis required for Rule 23; common questions must predominate)
- Holtzman v. Turza, No official reporter cited (N.D. Ill. 2009) (standing/definition debates arise in TCPA class definitions)
- Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (U.S. 2012) (discusses TCPA jurisdiction and related issues)
- Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (class action considerations under TCPA context)