The opinion of the court was delivered by: Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
Plaintiff, Clearbrook, filed this action alleging that it received an unsolicited fax from defendants and thereby defendants violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §227. Before the Court is plaintiff's motion to certify a class of plaintiffs who also, allegedly, received unsolicited faxes from defendants. For the reasons set forth below, the motion is denied without prejudice [dkt. 51].
Defendants, Rooflifters LLC, various Rooflifters subsidiaries, and ten unnamed defendants (John Does 1-10), are engaged in the service of lifting roofs to provide extra ceiling space for businesses. Plaintiff, Clearbrook, alleges that on February 14, 2008 it received an unsolicited fax advertisement from defendant and that the advertisement lacked an adequate opt-out notification, which the TCPA requires.*fn1 Plaintiff further alleges that discovery has revealed that defendants purchased 61,366 fax numbers from Unleashed List Services.*fn2 From this list, 21,547 are U.S. persons or businesses.*fn3 Defendants then contracted with Profax, a fax broadcaster.*fn4 It is alleged that Profax sent 15,503 faxes on February 14, 2008 and 26,471 faxes on February 15, 2008 on behalf of defendants.*fn5 Plaintiff claims over 15,000 of these faxes were sent to U.S. fax numbers. Plaintiff maintains that this mass fax operation was used to send the same advertisement that it received.
CLASS CERTIFICATION LEGAL STANDARD
In order for a putative class to be certified, the plaintiff bears the burden of meeting all four requirements of Federal Rule of Civil Procedure 23(a) and one subsection of Rule 23(b).*fn6 The Rule 23(a) requirements are numerosity, commonality, typicality, and adequacy of representation.*fn7 When evaluating whether these requirements have been satisfied, this Court is not limited to the pleadings.*fn8
Instead, we "make whatever factual and legal inquiries are necessary."*fn9 Furthermore, if class certification issues and the merits of the case overlap, "then the judge must make a preliminary inquiry into the merits."*fn10 Plaintiff must also satisfy one of the requirements of Rule 23(b). In this case, plaintiff wishes to proceed under Rule 23(b)(3), which requires "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."*fn11
A short background of the legal basis for the claims asserted here is helpful. The TCPA prohibits individuals and businesses from sending unsolicited fax advertisements.*fn12 However, if the sender of the fax has an "established business relationship" with the recipient, then the sender is permitted to send the fax advertisement.*fn13 When sending a fax under an "established business relationship," the sender must provide a notification with the fax advertisement advising the recipient of his or her right to opt-out of future faxes.*fn14 The regulations adopted by the Federal Communications Commission ("FCC") also require solicited fax advertisements, or fax advertisements "sent to a recipient that has provided prior express invitation or permission," to be accompanied with an opt-out notification.*fn15 The statute provides a private right of action that permits a plaintiff to seek an injunction preventing further violations of the act and to recover actual monetary loss or $500, whichever is greater.*fn16 Plaintiff in this case seeks statutory damages and an injunction against defendants from committing future violations.*fn17
Plaintiff proposes the following class definition:
(a) all persons located within the U.S. (b) who, on or after a date four years prior to the filing of this action, and on or before a date 20 days following the filing of this action, (c) were sent faxes by or on behalf of defendants promoting their goods or services for sale (d) and who were not provided an "opt out" notice that complies with federal law.
Defendants object to this class definition, arguing that it fails Rule 23(a)'s commonality and typicality requirements. Defendants also contend that common issues do not predominate over individual issues, as required by Rule 23(b)(3). Additionally, defendants argue that the class definition is unworkable because potential class members would not know whether they belong in the class.