Sandusky Wellness Center, LLC, an Ohio limited liability company, individually and as the representative of a class of similarly situated persons, Plaintiff-Appellant,
ASD Specialty Healthcare, Inc., d/b/a Besse Medical AmerisourceBergen Specialty Group, Inc.; John Does 1-10, Defendants-Appellees.
Argued: February 2, 2017
from the United States District Court for the Northern
District of Ohio at Toledo. No. 3:13-cv-02085-Jack Zouhary,
L. Hara, ANDERSON WANCA, Rolling Meadows, Illinois, for
W. Jaszczuk, JASZCZUK P.C., Chicago, Illinois, for Appellees.
L. Hara, ANDERSON WANCA, Rolling Meadows, Illinois, Matthew
E. Stubbs, MONTGOMERY RENNIE & JONSON, Cincinnati, Ohio,
W. Jaszczuk, W. Scott Hastings, Keith L. Gibson, LOCKE LORD
LLP, Chicago, Illinois, Jennifer J. Dawson, MARSHALL &
MELHORN, LLC, Toledo, Ohio, for Appellees.
Before: SUHRHEINRICH, SUTTON, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge.
2010, Defendant ASD Specialty Healthcare, d/b/a/ Besse
Medical AmerisourceBergen Specialty Group
("Besse"), a pharmaceutical distributor, sent a
one-page fax advertising the drug Prolia to 53, 502
physicians. Only 40, 343, or 75%, of these faxes were
successfully transmitted. Plaintiff Sandusky Wellness Center,
a chiropractic clinic that employed one of these physicians,
claims to have received this so-called "junk fax, "
and- three years later-filed a lawsuit against Besse for the
annoyance. Sandusky alleged that Besse violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227, by sending an
unsolicited fax advertisement lacking a proper opt-out
notice, and it sought to certify a putative class of all 40,
343 Prolia fax recipients. The district court denied
Sandusky's motion for class certification, and because
that decision was not an abuse of discretion, we affirm.
first provide a brief overview of the Telephone Consumer
Protection Act before turning to the facts of this case.
1991, Congress passed the Telephone Consumer Protection Act
(TCPA), see Pub. L. No. 102-243, 105 Stat. 2394,
which was later amended by the Junk Fax Prevention Act of
2005, see Pub. L. No. 109-21, 119 Stat. 359
(codified at 47 U.S.C. § 227). These legislative efforts
were geared towards curbing the inundation of "junk
faxes" that businesses were receiving. H.R. Rep. 102-317
at 10 (1991). These faxes were seen as problematic because
they forced unwitting recipients to bear the costs of the
paper and ink and also monopolized the fax line, preventing
businesses from receiving legitimate messages. Id.
response, the TCPA generally banned the sending of any
"unsolicited advertisement" via fax. 47
U.S.C. §227(b)(1)(C) (emphasis added). A fax is
"unsolicited" if it is sent to persons who have not
given their "prior express invitation or
permission" to receive it. Id. §
statute carves out a narrow exception to this general ban by
permitting the sending of unsolicited faxes if a sender can
show three things: (1) the sender and recipient have "an
established business relationship"; (2) the recipient
voluntarily made his fax number available either to the
sender directly or via "a directory, advertisement, or
site on the Internet"; and (3) the fax contained an
opt-out notice meeting detailed statutory requirements.
Id. § 227(b)(1)(C)(i)-(iii). The upshot of this
exception is that if an unsolicited fax does not contain a
properly worded opt-out notice, the sender will be liable
under the statute, regardless of whether the other two
criteria are met.
also authorized the Federal Communications Commission (FCC)
to "prescribe regulations to implement the requirements
of [the TCPA]." Id. § 227(b)(2). In 2006,
the FCC promulgated a rule requiring opt-out notices on
solicited faxes, i.e., those faxes sent to
recipients who had given their "prior express invitation
or permission" to receive it. See Rules and
Regulations Implementing the Telephone Consumer Protection
Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg.
25, 967, 25, 971-72 (May 3, 2006) (now codified at 47 C.F.R.
§ 64.1200(a)(4)(iv)) (the "Solicited Fax
Rule"). After the passage of the Solicited Fax Rule,
both unsolicited and solicited faxes were required to include
opt-out notices that, among other things, were "clear
and conspicuous, " informed recipients that a sender was
required to comply with an opt-out request "within the
shortest reasonable time, " and included a telephone
number recipients could call to exercise their opt-out
rights. See 47 U.S.C. § 227(b)(2)(D)(i)-(vi).
ensure fax senders complied with the TCPA, Congress provided
for a private right of action that allowed individuals and
entities to sue for injunctive and monetary relief based on
any violation "of [the statute] or the regulations
prescribed [there]under." Id. § 227(b)(3).
fax senders faced a $500 fine for each fax sent that violated
the TCPA or any FCC rule-a fine that could be increased to
$1, 500 per fax for willful violations. Id.
import of the TCPA's damage scheme combined with the
FCC's Solicited Fax Rule meant vast exposure to liability
for businesses that used fax machines to advertise. For
example, even individuals who agreed to receive faxes could
nevertheless turn around and sue senders for $500 per fax if,