On May 3, the United States Court of Appeals for the Eighth Circuit reversed a lower court’s rejection of class certification in Sandusky Wellness Ctr., LLC v. Medtox Scientific, Inc., a case brought under the Telephone Consumer Protection Act (“TCPA”) relating to junk faxes sent by a lead testing company.  In its opinion, the Court defined the ascertainability standard for the Eighth Circuit, aligning it with the minority of courts that require a less rigorous analysis.

Along with the Consumer Financial Protection Bureau’s continued efforts to eliminate class action waivers in arbitration agreements, this decision reflects a legal trend favoring class actions and hence increased litigation risk for companies.


In Sandusky, the defendant toxicology lab contacted pediatricians, family practitioners, health departments, and child-focused organizations about its lead testing capabilities.  Using a directory from a health insurance company, Medtox transmitted a single-page fax to 3,256 numbers within a nine-day period.  One of those numbers belonged to Plaintiff, a chiropractic center.

Plaintiff filed suit and sought to certify a class of all persons sent faxes regarding lead testing services by or on behalf of Defendant.  The district court denied class certification, holding that class was “not ascertainable, because it does not objectively establish who is included in the class.”  Plaintiff then appealed to the Eighth Circuit.

Eighth Circuit Decision and Circuit Split

On appeal, Medtox argued that there is no way to objectively ascertain the class because it includes all persons who “were sent” the faxes, which Medtox claimed could apply to multiple persons (such as the subscriber to the fax number, the owner of the fax machine, or a user disrupted by the fax).  The Eighth Circuit focused on the language of the TCPA, which prohibits the sending of an unsolicited fax advertisement to a “recipient.”  The Court concluded that a “recipient” is “the person or entity that gets the fax,” and “[t]he best objective indicator of the ‘recipient’ of a fax is the person who subscribes to the fax number.”  The Eighth Circuit determined that “fax logs showing the numbers that received each fax are objective criteria that make the recipient clearly ascertainable.”

Most importantly, the opinion defined the ascertainability standard within the Eighth Circuit, requiring only that the class be defined in reference to objective criteria.  In so doing, the Eighth Circuit joined the minority of circuits requiring a less rigorous ascertainability standard.  By contrast, the majority of circuits apply a “heightened” standard that requires that (1) the class is “defined with reference to objective criteria,” and (2) there is a “reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”

Moving Forward

Given the considerable difference of opinion among the various Courts of Appeals in this area of law in the last few years, the United States Supreme Court will have to step in to have the final say, most likely after a new justice is confirmed to replace the late Justice Antonin Scalia.  The nation’s highest court earlier this year declined review of the Seventh Circuit’s decision in Mullins v. Direct Digital LLC, which similarly adopted the less rigorous ascertainability standard.

Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 50 companies regarding their compliance strategies.  We will continue to monitor legislative developments and regulatory implementation of the TCPA in order to identify and advise on potential risks.