{"id":2348,"date":"2025-08-14T09:27:08","date_gmt":"2025-08-14T13:27:08","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=2348"},"modified":"2025-08-14T09:27:08","modified_gmt":"2025-08-14T13:27:08","slug":"youve-got-mail-but-not-class-certification","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2025\/08\/14\/youve-got-mail-but-not-class-certification\/","title":{"rendered":"You\u2019ve Got Mail But Not Class Certification"},"content":{"rendered":"
\n
\"\"<\/a><\/figure>\n<\/div>\n\n\n

By Gerald L. Maatman, Jr., Shannon Noelle, and Ryan Garippo<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways<\/em>: \u00a0<\/strong>In a recent opinion<\/a> in Fischbein v. IQVIA Inc., Case No. 19-CV-5365 (E.D. Pa. June 5, 2025), Judge Nitza I. Qui\u00f1ones of the U.S. District Court for\u00a0the Eastern District of Pennsylvania denied class certification of a proposed class of healthcare professionals that allegedly received unsolicited fax advertisements in violation of the Telephone Consumer Protect Act (\u201cTCPA\u201d). The Court determined that the TCPA only prohibits receipt of unsolicited ads on a \u201ca traditional stand-alone fax machine\u201d (as opposed to modern online faxing) and plaintiffs did not demonstrate that common evidence existed showing all class members received the alleged ads at issue through a traditional fax machine as opposed to through an online transmission.\u00a0 \u00a0As a result, the Court found that plaintiffs did not satisfy the required ascertainability and predominance elements of class certification.<\/em><\/p>\n\n\n\n

Background<\/u><\/strong><\/p>\n\n\n\n

The proposed class in Fischbein v. IQVIA Inc. <\/em>consisted of more than 25,000 healthcare providers that allegedly received unsolicited fax advertisements from Defendant IQVIA Inc., a company that provides advanced analytics, technology solutions, and clinical research services to the life sciences industry.  The class complaint contended that certain faxes for surveys administered by IQVIA were allegedly sent in violation of the TCPA which makes it \u201cunlawful for any person within the United States, or any person outside the United States if the recipient is within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone or facsimile machine, an unsolicited advertisement.\u201d  Id. <\/em>at 3.<\/p>\n\n\n\n

The Court\u2019s Decision<\/u><\/strong><\/p>\n\n\n\n

Parsing the plain language of the statute and interpretive case law in the Fourth Circuit, the District Court agreed with the Fourth Circuit finding that the statute was designed to only protect plaintiffs that received advertisements on stand-alone fax machines, rather than through online fax services.  The statute states in relevant part that it is unlawful to \u201cuse any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine<\/em><\/strong>, an unsolicited advertisement.\u201d  See <\/em>47 U.S.C. \u00a7 227(b)(1)(C) (emphasis added).  The statute further defines \u201ctelephone facsimile machine\u201d as \u201cequipment which has the capacity (A) to transcribe text or images, or both, from paper<\/em><\/strong> into an electronic signal and to transmit that signal over a regular telephone line<\/em><\/strong>, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper<\/em><\/strong>.\u201d   See <\/em>ECF No. 119, at 8 (citing \u00a7 227(a)(3) (emphasis added)).  Plaintiffs submitted the testimony of an expert who opined that the phrase \u201cregular telephone line\u201d would include transmissions made by online services so long as it was regulated by the North American Numbering Plan Administrator.  Id.<\/em> at 8-9.  But the Court found that this interpretation would \u201crender superfluous\u201d the word \u201cregular\u201d used as a modifier of \u201ctelephone line\u201d in the statute.  Id.<\/em> at 9.  In fact, the expert\u2019s testimony contradicted his expert opinion as he conceded that \u201cregular telephone line\u201d means an \u201canalog telephone line.\u201d  Id.  <\/em>The Court also noted that plaintiffs presented no evidence nor did they make any arguments that an online fax service has the ability on its own<\/em><\/strong> to either transcribe text or images \u201cfrom paper\u201d or \u201conto paper\u201d as stated in the statute, further undermining plaintiffs\u2019 argument that the statute was meant to include online fax transmissions.  Id. <\/em>at 10.   Indeed, Plaintiffs\u2019 expert conceded that such online fax services have the \u201ccapacity\u201d to do this type of transcription only when connected to other devices like scanners or printers.  Id.<\/em> at 10.  The Court acknowledged that its statutory interpretation was also supported by the Federal Communications Commission\u2019s (\u201cFCC\u201d) declaratory ruling in In the Matter of Amerifactors Fin. Grp<\/em>., LLC, 34 F.C.C. Rcd. 11950 (2019). <\/p>\n\n\n\n

Applying this statutory interpretation, the Court found that the proposed class was not adequately ascertainable as plaintiffs could not point to common evidence to show that proposed class members received unsolicited ads through a stand-alone fax machine as opposed to an online service provider.  Plaintiffs suggested that they could submit declarations from class members to ascertain that they fell under the scope of the class of plaintiffs the statute was designed to protect, but the Court found that declarations from potential class members \u201cstanding alone, without records to identify class members or a method to weed out unreliable affidavits\u201d would not constitute a reliable or feasible means of determining class membership.  See <\/em>ECF No. 119, at 15 (internal citation and quotations omitted).<\/p>\n\n\n\n

For similar reasons, the Court also found that the predominance element of class certification was not met as individual questions of whether the faxes at issue were received on a stand-alone fax machine or by way of an online fax service would predominate over questions common to the proposed class. <\/p>\n\n\n\n

On June 20, 2025, plaintiffs filed a motion for reconsideration of the order denying class certification or, in the alternative, to certify a more narrowly-defined class (i.e.<\/em> asking the Court to narrow the class definition to exclude people who used online fax services).  This motion is pending before the Court.<\/p>\n\n\n\n

Implications for TCPA Defendants<\/strong><\/p>\n\n\n\n

The Fischbein<\/em> decision provides important points of attack for the defense bar on ascertainability and predominance grounds for TCPA classes by underscoring the importance of parsing class definitions in the TCPA context to ensure the modality of transmission of the alleged unsolicited advertisement can be determined on a class-wide basis and is limited to traditional fax machine communications.  <\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Shannon Noelle, and Ryan Garippo Duane Morris Takeaways: \u00a0In a recent opinion in Fischbein v. IQVIA Inc., Case No. 19-CV-5365 (E.D. Pa. June 5, 2025), Judge Nitza I. Qui\u00f1ones of the U.S. District Court for\u00a0the Eastern District of Pennsylvania denied class certification of a proposed class of healthcare professionals that … <\/p>\n

Continue reading “You\u2019ve Got Mail But Not Class Certification”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[89],"tags":[],"ppma_author":[7,134,127],"class_list":["post-2348","post","type-post","status-publish","format-standard","hentry","category-tcpa-class-action-litigation"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","author_category":"","last_name":"Maatman Jr.","first_name":"Gerald L.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/geraldmaatman.html","description":"Read Gerald's bio.<\/a>"},{"term_id":134,"user_id":717,"is_guest":0,"slug":"snoelle","display_name":"Shannon Noelle","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2025\/07\/noelleshannon-100x100.jpg","author_category":"","last_name":"Noelle","first_name":"Shannon","job_title":"","user_url":"","description":"Read Shannon's Bio<\/a>"},{"term_id":127,"user_id":692,"is_guest":0,"slug":"rgarippo","display_name":"Ryan Garippo","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2024\/09\/garipporyan-100x100.jpg","author_category":"","last_name":"Garippo","first_name":"Ryan","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/ryangarippo.html","description":"Read Ryan's Bio<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/2348","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=2348"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/2348\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=2348"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=2348"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=2348"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=2348"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}