In a long-running Telephone Consumer Protection Act class action, Missouri District Judge Catherine Perry recently granted defendant Vein Centers for Excellence Inc.’s motion to decertify the class. 

As background, Vein Centers is a marketing firm that provides graphic design and other services to doctors.  The named plaintiff, St. Louis Heart Center, Inc., filed this putative class action against Vein Centers in 2012, alleging that Vein Centers sent four unsolicited faxes to St. Louis Heart Center marketing Vein Center’s services.  The court subsequently certified a class of all persons who, between January 15, 2008 and September 15, 2009, were sent one or more faxes by Vein Centers that did not inform the fax recipient both that (1) he or she may make a request to the sender of the advertisement not to send any future faxes, and that (2) failure to comply with the request within 30 days is unlawful. 

Vein Centers moved for decertification, arguing that the inability to identify potential class members violates Rule 23’s requirements of commonality, predominance, and ascertainability.  Relying on the Eighth Circuit’s decision in Sandusky, St. Louis Heart Center argued that precise identification of class members is not required at this stage of the litigation.  The court ultimately agreed with Vein Centers, holding that there is no “objective criteria” available to clearly ascertain the class members, stating, “Without fax logs of successful transmissions or other such evidence, the only way potential class members could prove they were ‘sent’ junk faxes, as required by the class definition, is through individual testimony.”  The court concluded that the case shall proceed as to the named plaintiff only.