Last month, the Eastern District of Pennsylvania in Lyngaas, D.D.S., P.L.L.C. v. IQVIA, Inc., 2024 WL 3360653 (E.D. Pa. July 9, 2024) rejected a bid for class certification after finding that plaintiff failed to articulate an administratively feasible method of identifying the potential class members. This decision further entrenches the ascertainability requirement set forth in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and more recently in In re Niaspan Antitrust Litig., 67 F.4th 118 (3d Cir. 2023).
In Lyngaas, the plaintiff alleged that he received unsolicited fax advertisements from IQVIA, Inc. ("IQVIA") in violation of the Telephone Consumer Protection Act ("TCPA"), which prohibits fax advertisements without prior express consent from recipients. Lyngaas, 2023 WL 3360653, at 1-2. Believing that he was among more than 134,000 healthcare professionals receiving these unsolicited fax advertisements, Plaintiff sought class certification under Rule 23(b)(3) for:
All persons (1) who were sent one or more facsimiles between September 29, 2016 and August 28, 2018, inviting them to participate in Impact Network's "National Healthcare Census" in exchange for monetary payment; (2) who did not participate in and had never participated in the "National Healthcare Census" survey; and (3) as to whom Defendant has not produced evidence showing SK&A verified the person's fax number."
Id. at 2. Rule 23(b)(3) permits class certification where 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." Id. at 3. The Third Circuit, however, has held that in addition to these requirements, a plaintiff seeking class certification "must prove by a preponderance of the evidence that the class is ascertainable." Id. at 3 (citing Byrd v. Aaron's Inc., 784 F.3d 154, 163 (3d Cir. 2015). Ascertainability is a "threshold issue" in the Third Circuit and requires a plaintiff to show at the outset: "(1) the class is defined with reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition." Id. at 4 (quoting Byrd, 784 F.3d at 163) (internal quotation marks omitted).
In Lyngaas, plaintiff's method for ascertaining class membership rested entirely on expert analysis of fax job reports. These job reports, obtained from third-party vendor Odyssey Services, Inc. ("Odyssey"), identified individual faxes sent by IQVIA to individual fax numbers.1 The job reports also included an "S" code that plaintiff's expert opined could be used to delineate which faxes had been sent. But, as the Eastern District recognized in its opinion, these fax job reports—and more importantly the internal "S" code—had critical limitations. Specifically, plaintiff's expert could not establish the reliability of the job reports, rule out "false positive[s]," or prove that faxes were sent successfully. Id. at 5. The court also raised concern about plaintiff's ability to prove whether the recipients of these faxes had given their consent. Id. at 7.
Without reliable fax job reports, the court held that plaintiff failed to establish objective criteria for identifying members of the putative class. Id. The court also found that plaintiff failed to set forth an administratively feasible method for identifying class members because plaintiff's method would require a "highly individualized inquiry" into whether the individuals behind each fax number: (1) received a relevant fax from IQVIA; and (2) consented to receive that fax. Id. And because the court determined it would need to undertake "individualized fact-finding or mini-trials" to ascertain class membership, class certification was denied. Id. at 7-8.
The Eastern District of Pennsylvania's denial of class certification reflects the judiciary's continued acceptance of ascertainability as a threshold issue that must be established before considering other class certification factors under Rule 23(b)(3). In the absence of clear, reliable, and administratively feasible methods to identify class members, class certification is likely to fail.
Footnote
1 During a ransomware attack in 2018, Odyssey lost all of its archived fax reports, including fax records relevant to plaintiff's claims. Because Odyssey could not produce the original records in this case, plaintiff's expert analyzed job reports that IQVIA located in its internal files. These job reports were the only remaining evidence of faxes sent by IQVIA to the putative class.
Previously published in WLF Legal Pulse, August 21, 2024.
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