Sal's Glass Co. LLC v. Duplicating Methods Co.
Absent evidence every participant in a proposed class-action suit suffered an injury, a plaintiff may not be able to prove that questions of law or fact exist that are common to the proposed class. The plaintiff filed a putative class-action suit, on behalf of the plaintiff and similarly situated companies, alleging that the defendant sent unsolicited junk faxes, without the plaintiff's permission, in violation of the Telephone Consumer Protection, Act, 47 United States Code §227. The plaintiff maintains that unsolicited faxes damage the recipients, because the faxes use the recipients' fax machines, paper, ink and toner. The plaintiff requested certification as a class action. The defendant objected that certification is not appropriate, because there are individualized questions of law and fact concerning whether exceptions apply as a result of prior business relationships with recipients, recipients' public distribution of the recipients' fax numbers and disclaimers that permit recipients to avoid future unsolicited advertisements. Allegedly, 7,585 of the recipients of the fax were located in Connecticut, and the court found that the plaintiff met numerosity requirements for a class-action suit. There was no evidence that every recipient suffered an injury, and the court found that the plaintiff failed to prove that there are questions of law or fact common to the proposed class. "There is an undetermined number included," wrote the court, "that may have no grounds for asserting liability or injury and the plaintiff has made no effort to identify and exclude them." The plaintiff also failed to establish her claims are typical of those of the proposed class and that common questions of law or fact predominate over questions that affect individual members. The court denied the plaintiff's motion to certify a class action.