Argued May 8, 2014
Civil action commenced in the Superior Court Department on March 8, 2010.
A motion for class certification was heard by Frances A. McIntyre, J., and entry of judgment was ordered by her.
Tod A. Lewis, of Illinois, for the plaintiff.
Present: Rubin, Wolohojian, & Maldonado, JJ.
[15 N.E.3d 221] Rubin, J.
The Federal Telephone Consumer Protection Act of 1991 (TCPA) forbids the use of " any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C) (2006). The TCPA creates a private right of action for recipients of unsolicited advertisements received by facsimile (fax), entitling them to collect from the sender the greater of actual damages or $500. Treble damages are available in the case of knowing or wilful violations.
Florida travel agency Around The Globe Travel, Inc. (Around The Globe) hired New York fax broadcaster Business to Business Solutions (B2B) to assist it with advertising a Super Bowl party on a cruise ship. Using a list of fax machine telephone numbers purchased from a third party, B2B sent 2,325 faxes to 1,640 different Massachusetts business fax numbers on August 2 and 3, 2006. One of the recipients was the plaintiff, Hazel's Cup & Saucer, LLC (Hazel's).
Hazel's brought this case as a putative class action in the Superior Court against the defendant Around The Globe. The submissions of Hazel's to the lower court describe some of the difficult and costly procedures undertaken by Hazel's, its counsel, and its expert witness in order to find both Around The Globe and B2B, and to identify the recipients of the advertisement at issue.
The motion judge denied a motion for class certification under Mass.R.Civ.P. 23, [15 N.E.3d 222] as amended, 452 Mass. 1111, 898 N.E.2d 863 (2008). With respect to the four factors listed in rule 23(a) -- numerosity, commonality, typicality, and adequacy of representation -- the judge found the requirements of the TCPA easily met. As for the factors outlined in rule 23(b) -- predominance of common questions of law and fact over issues affecting only individual members, and superiority of class action over other methods of adjudication -- the judge found that the predominance requirement also was satisfied, before turning to the question of superiority. On this final inquiry, she concluded that the class action mechanism was not superior to the adjudication of each individual class member's claim in the small claims session of the District Court.
The judge found that allowing class certification would be " patently unfair" because
" the potential damage award would be disproportionate in relation to the actual harm suffered by the class. ... [A] potential cumulative award of the alleged 2,325 TCPA violations would range from a minimum of over $1.1 million to over $3.4 million. Yet, the nature of the harm suffered by individual ...