Sharfman v. InfuCare RX LLC

• Docket Number: 6:21-cv-525-WWB-DCI
• Decision Date: 16 November 2022
• Parties: MARC IRWIN SHARFMAN, M.D., P.A., Plaintiff, v. INFUCARE RX LLC and INFUCARE RX PENNSYLVANIA INC., Defendants.
• Court: U.S. District Court — Middle District of Florida

1

MARC IRWIN SHARFMAN, M.D., P.A., Plaintiff, v. INFUCARE RX LLC and INFUCARE RX PENNSYLVANIA INC., Defendants.

No. 6:21-cv-525-WWB-DCI

United States District Court, M.D. Florida, Orlando Division

November 16, 2022

REPORT AND RECOMMENDATION

DANIEL C. IRICK UNITED STATES MAGISTRATE JUDGE

This cause comes before the Court for consideration without oral argument on the following motion:

MOTION: Plaintiff's Motion to Certify Class (Doc 50)

FILED: August 5, 2022

THEREON it is RECOMMENDED that the motion be DENIED.

Marc Irwin Sharfman, M.D., P.A. (Plaintiff), individually and on behalf of others similarly situated, initiated this junk fax case against Infucare RX, LLC and Infucare RX Pennsylvania Inc.^[1]alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et. Seq. (TCPA). Pending before the undersigned is Plaintiff's Motion for Class Certification filed pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3). Doc. 50 (the Motion). Defendants^[2]have filed a Response in Opposition (Doc. 55) (the Response). With leave of Court, the parties also submitted Plaintiff's Reply to the Response (Doc. 59); Defendants' Sur-reply (Doc. 66); Plaintiff's “Rejoinder” in Support of the Motion for Class Certification (Doc. 76); and documents filed under seal (Docs. 68, 72, 78).

The Motion has been referred to the undersigned for the issuance of a report and recommendation and is ripe for review.

I. Background

On March 23, 2021, Plaintiff, a Florida corporation, filed a one-count Class Action Complaint alleging that Defendants violated the TCPA by sending Plaintiff an unsolicited advertisement facsimile (fax) using a telephone fax machine, computer, or other device and by faxing the same or other unsolicited fax advertisements to Plaintiff and other recipients without the required opt-out language and without first receiving the recipients' express invitation or permission. Doc. 1 at 2, 4-5. According to the Motion, Defendants successfully sent 11,417 unsolicited fax advertisements to 8,990 “unique fax numbers in broadcasts” on March 10, 2021; March 11, 2021; and March 18, 2021 (collectively “the March faxes”). Doc. 50 at 9. Defendant Infucare RX, LLC (Defendant Infucare) provides in-home acute and chronic specialty infusion services. Id., citing Patel Dep. at 8:17-24. Plaintiff asserts that the faxes advertised Immunoglobulin Therapy and Infusion Therapy services and Defendant Infucare utilized third-party broadcaster Concord III, LLC d/b/a Concord Technologies (Concord) to transmit the faxes without prior express permission to a list of recipients Defendant Infucare purchased from third-party data provider Definitive Healthcare. Doc. 50 at 9.

Plaintiff seeks an Order from the Court certifying the following class:

Class A

All persons or entities who were successfully sent a Fax, on or about March 10, 2021, March 11, 2021, or March 18, 2021, that states: “Infucare Rx is now a Preferred Provider,” and/or “Selected by Cigna's eviCore healthcare for Specialty and Non-Specialty Infusions Services,” and/or “Selected by Cigna's eviCore healthcare for Specialty Pharmacy and Infusion Therapy Services.”

Alternatively, Plaintiff states that if the Court seeks to distinguish between faxes successfully sent to “stand-alone” fax machines-as was the case with respect to Plaintiff-versus faxes that were successfully sent to an “online fax service,” Plaintiff requests that the Court certify the following class:

Class B

All persons or entities who were successfully sent a Fax to their stand-alone fax machine, on or about March 10, 2021, March 11, 2021, or March 18, 2021, that states: “Infucare Rx is now a Preferred Provider,” and/or “Selected by Cigna's eviCore healthcare for Specialty and Non-Specialty Infusions Services,” and/or “Selected by Cigna's eviCore healthcare for Specialty Pharmacy and Infusion Therapy Services.”

Id. at 9-10. Plaintiff adds that the proposed classes exclude “practices/physicians” with whom Defendant Infucare claims to have a relationship, which includes those who have signed declarations regarding permission. Id. at 10. Plaintiff contends that its counsel should be appointed class counsel under Rule 23(g) and Plaintiff should be appointed class representative. Id. "

Defendants argue that online fax service users-included within Class A-do not have claims under the TCPA and lack Article III standing. Doc. 55. Defendants also argue that both proposed classes fail under Rule 23(a) and Rule 23(b)(3) and certification is not justified because Plaintiff has not demonstrated commonality, typicality, and adequacy of representation under Rule 23(a) or that common issues predominate, and a class action would be superior under Rule 23(b). Id. at 15-27.

II. The Law

A. The TCPA

Congress passed the TCPA in 1991 to balance “[]individuals' privacy rights, public safety interests, and commercial freedoms of speech and trade.” Tel. Consumer Prot. Act of 1991, Pub. L. No.102-243 (1991). It was later amended by the Junk Fax Prevention Act of 2005, Pub L. No. 109-21 (2005), codified at 47 U.S.C. § 227. In relevant part, the TCPA prohibits the use of “any telephone facsimile machine, computer, or other devise to send, to a telephone fax machine, an unsolicited advertisement” unless:

(i) The unsolicited advertisement is from a sender with an established business relationship with the recipient;

(ii) The sender obtained the number of the telephone facsimile machine through-

(I) The voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or

(II) A directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution,

except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before the date of enactment of the Junk Fax Prevention Act of 2005 [enacted July 9, 2005] if the sender possessed the facsimile machine number of the recipient before such date of enactment; and

(iii) The unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D). . ..

47 U.S.C. § 227(b)(1)(C).

The TCPA defines the term “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5). “So if a fax recipient provided ‘prior express invitation or permission' to receive the fax, the fax was solicited and was not subject to the Act's prohibition on unsolicited faxes.” Gorss Motels, Inc. v. Safemark Sys., LP, 931 F.3d 1094, 1100 (11th Cir. 2019) (citing BaisYaakov of Spring Valley v. Fed. Commc'ns Comm'n, 852 F.3d 1078, 1082 (D.C. Cir. 2017)). “Express permission to receive a faxed ad requires that the consumer understand that by providing a fax number, he or she is agreeing to receive faxed advertisements.” Id. (quoting In re Rules & Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 68 Fed.Reg. 44144, 44168 (fcc July 25, 2003)).

A person or entity may bring an action to enjoin a violation of the TCPA or to recover actual damages or statutory damages of $500 for each violation, whichever is greater § 47 U.S.C. § 227(b)(3)(B).

B. Class Certification

The party seeking class certification must show that the proposed class meets Rule 23's requirements. Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233-34 (11th Cir. 2016). A plaintiff must first establish that the proposed class is “adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012). If that is met, then Rule 23(a) requires that: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact 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 representative parties will fairly and adequately protect the interests of the class (adequacy). Fed.R.Civ.P. 23(a).

In addition to Rule 23(a) requirements, the party seeking certification “must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Here, Plaintiff seeks certification under Rule 23(b)(3), which requires that the Court find “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.” See Doc. 50 at 19, citing Fed.R.Civ.P. 23(b)(3).

III. Discussion

In this Report, the undersigned first recommends that the Court not certify Plaintiff's putative Class A because some members of that class-i.e., online fax users-do not have standing and do not have a claim under the TCPA. Based on that finding the undersigned then considers Plaintiff's request to certify the putative Class B (the alternative proposed class), which is composed of stand-alone fax users such as Plaintiff. While the undersigned recommends that Class B is ascertainable and that Plaintiff has satisfied its burden with respect to the commonality and numerosity requirements under Rule 23(a), the undersigned ultimately recommends that Plaintiff's Motion be denied and that class certification is not appropriate because typicality, adequacy of representation, predominance, and...