240 F.R.D. 239 (M.D.La. 2006), Civ. A. 05-121-JJB-DLD, Gene & Gene, LLC v. Biopay, LLC

Docket Nº:CIV.A. 05-121-JJB-DLD.
Citation:240 F.R.D. 239
Opinion Judge:BRADY, District Judge.
Party Name:GENE & GENE, LLC, v. BIOPAY, LLC, et al.
Attorney:Philip Bohrer, Bohrer Law Firm, Christopher K. Jones, John P. Wolff, III, Keogh, Cox & Wilson, Keith D. Jones, Baton Rouge, LA, for Gene & Gene, LLC. David B. Sharpe, Scott Rodgers Wheaton, Jr., Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Sidney W. Degan, III, Ralph Gerard Breaux, Degan, Blanchar...
Case Date:December 20, 2006
Court:United States District Courts, 5th Circuit, Middle District of Louisiana

Page 239

240 F.R.D. 239 (M.D.La. 2006)



BIOPAY, LLC, et al.

No. CIV.A. 05-121-JJB-DLD.

United States District Court, M.D. Louisiana.

December 20, 2006

Page 240

Philip Bohrer, Bohrer Law Firm, Christopher K. Jones, John P. Wolff, III, Keogh, Cox & Wilson, Keith D. Jones, Baton Rouge, LA, for Gene & Gene, LLC.

David B. Sharpe, Scott Rodgers Wheaton, Jr., Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Sidney W. Degan, III, Ralph Gerard Breaux, Degan, Blanchard & Nash, New Orleans, LA, Russell J. Gaspar, Cohen, Milstein, Hausfeld & Toll, PLLC, Washington, DC, Andre' Collins Gaudin, Meredith M. Miceli, Burglass & Tankersley, L.L.C., Metairie, LA, for Biopay, LLC, et al.


BRADY, District Judge.

This matter is before the court on a motion for class certification filed by lead plaintiff, Gene and Gene, LLC (doc. 55). Defendants, Essex, Biopay, and Evanston have each filed memoranda in opposition to the plaintiff's motion to certify the class (docs. 68, 69, 70). The plaintiff filed a Supplemental Memorandum in Support of its Motion (doc. 88) as well as a Consolidated Reply to the defendants' arguments (doc. 91). Defendant Essex filed a Supplemental Memorandum in Opposition (doc. 95). Oral arguments were held on the Motion for Class Certification on December 11, 2006.

Background Facts

The plaintiff, Gene and Gene, filed suit against defendant, Biopay, for allegedly violating the Telephone Consumer Protection Act (" TCPA" ) of 1991. 1 The TCPA prohibits the " use [of] any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. § 227(b)(1)(C). The TCPA creates a private right of action by which a litigant can: 1) seek to enjoin the violation; 2) pursue an action to recover for actual monetary loss from such a violation or receive $500 in damages for each such violation,

Page 241

whichever is greater; or 3) pursue both such actions. Id. § 277(b)(3). If a court finds that a defendant acted willfully or knowingly in violation of the TCPA, the court is given the discretion to award treble damages. Id. Thus, each violation can result in a fine of up to $1500.

In this case, the plaintiff alleges that Biopay advertised its products by " fax blasting," an advertising strategy by which facsimiles are sent to numerous recipients at once. The plaintiff amended its complaint to add Essex Insurance Company and Evanston Insurance Company, alleging that Essex and Evanston provided insurance to Biopay which would cover the allegations set forth in the initial complaint (docs. 18, 40).

In its motion for class certification, the plaintiff seeks to define the class as:

all recipients of unsolicited telefacsimile messages and/or advertisements within the State of Louisiana which were transmitted and/or initiated by or on behalf of BIOPAY, L.L.C., between the dates of January 21, 2001 and through the present; The named Class shall not include any recipients from whom the Defendant has received the prior express invitation or permission to receive the telefacsimile advertisements.

Doc. 58 (Plaintiff's Memorandum in Support of Motion for Class Certification, p. 3).


I. Overview of Rule 23

This court has substantial discretion in determining whether to certify a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 2 Nevertheless, despite the discretionary nature of a class certification ruling, this court must conduct a rigorous analysis to ensure that the requirements of Rule 23 have been met.3 As movers for class certification, the plaintiffs bear the burden of proving that the elements of Rule 23 have been met.4

Rule 23(a) sets forth four threshold requirements that must be satisfied by the putative class before a case is certified as a class action. The plaintiff must establish that: 1) the class is so numerous that joinder of all members is impractical (" numerosity" ); 2) questions of law or fact are common to the class (" commonality" ); 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (" typicality" ); and 4) the plaintiff and its counsel will fairly and adequately protect the interest of the class (" adequacy of representation" ).

If these four prerequisites are met, the plaintiff must further satisfy one of the three categories listed in Rule 23(b). Under 23(b), the plaintiff must show that: 1) separate actions would result in inconsistent adjudications or the non-parties interests will be substantially impaired; 2) final injunctive or declaratory relief is appropriate to the class as a whole; or 3) common questions of law or fact predominate over any questions affecting only individual members and a class action is the superior method of fairly and efficiently adjudicating the controversy.

II. Rule 23(a)

A) Numerosity

Ordinarily, a plaintiff must " demonstrate some evidence or reasonable estimate of the number of purported class members." 5 Although numbers alone are not dispositive of the numerosity inquiry,6 the Fifth Circuit has provided some guidance as to how many putative class members are necessary to fulfill the numerosity standard of Rule 23(a)(1).

Page 242

The Fifth Circuit has held that a class composed of 100 to 150 members will generally satisfy the numerosity requirement.7

In this case, the plaintiff seeks to certify a class compromised of all Louisiana recipients of Biopay's fax advertisements since 2001. The plaintiff alleges that the this would include 4,199 fax transmissions.8 The log transmissions contain data indicating the name and contact information of the fax recipients. This court finds that the plaintiff has produced sufficient evidence to satisfy the numerosity requirement.

B) Commonality

To meet the requirements of Rule 23(a)(2), a plaintiff must demonstrate that questions of law or fact are common to the class. In this case, the plaintiff alleges that because Biopay engaged in a common course of conduct in the transmission of unsolicited fax advertisements, the operative facts are the same for the proposed class.

Biopay asserts that the putative class cannot meet the commonality requirement because the court will have to conduct individual inquiries to determine which persons belong to the class. Biopay notes that a violation of the TCPA requires " unsolicited" faxes. It maintains that although the class representative may have received an unsolicited fax, this does not mean that every potential class member received an unsolicited fax. Biopay further argues that if an Established Business Relationship exists, it would further heighten the difficulty in determining which parties received unsolicited faxes.9

Defendant Essex has essentially made the same arguments as Biopay. Essex contends that genuine issues of fact exist as to whether or not the faxes sent by Biopay were unsolicited. Consequently, Essex maintains that individual inquiries will have to be made for each transmission.

The parties have well briefed the court on prior cases deciding TCPA class certification issues. In surveying the landscape of TCPA class certification litigation, this court has reviewed numerous cases deciding for and against class certification. For the vast majority of them, the bone of contention has been the element of commonality. While state cases have allowed class certification in TCPA claims,10 federal courts have consistently denied class certification.11

However, the parties have not cited, nor was this court able to find a pronouncement from the Fifth Circuit nor any other federal court in Louisiana on the issue of TCPA class certification. Thus, there is no binding precedent on point. Rather than blindly following the rulings of other jurisdictions, this court has examined Fifth Circuit precedent in order to ascertain how a federal court within the Fifth Circuit should decide this matter.

This court finds Forbush v. J.C. Penney, Co., 994 F.2d 1101 (5th Cir.1993) to be instructive. In Forbush, the plaintiff sued J.C. Penney after the company had denied her retirement benefits. Id. at 1103. The plaintiff attempted to certify a class composed of...

To continue reading