The federal court in Maryland recently rejected a proposed class action under the Telephone Consumer Protection Act, raising the important issue of ascertainability. See Brey Corp. v. LQ Mgmt. LLC, (D. Md., 1/30/14).

The implicit requirement of ascertainability is an important but sometimes overlooked prerequisite to class certification. A plaintiff must offer a definition of a class that is precise, objective and presently ascertainable. A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable.The courts have observed that the ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action. Third, it protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable. If a class cannot be ascertained in an economical and administratively feasible manner, any significant benefits of a class action are lost.

Here, the court focused on the notice rationale.  The general proposition is of course that a class should be certified before class notices are sent. See generally Carrera v. Bayer Corp., 727 F.3d 300 (3rd Cir. 2013). But here, it was already clear that the court could not figure out who to send notice to.  First, the members of the putative class complaining about the junk faxes would have standing to assert a claim against defendant only if they received an unsolicited fax. There were no objective criteria that establish that a putative class member in fact obtained an unsolicited fax. A putative class member would be able to establish his, her, or its standing only by submitting an affidavit that he, she, or it had received the unsolicited fax. A sort of self defining, impossible to verify, class. In order for a plaintiff to recover, he or she must prove to the satisfaction of the fact-finder, after being cross-examined, that she, he, or it is entitled to the relief sought. And that would clearly involve, here, multiple individual issues and mini-trials.

Second, said the court, the unsolicited faxes in question were sent some 6 or 7 years ago. Therefore, the dim recollection of a putative class member that he, she, or it had received a particular unsolicited fax would be involved, and obviously somewhat suspect.

Finally, the court observed that the provenance of this litigation was “somewhat suspect.” Plaintiff’s counsel entered into a retainer agreement with plaintiff not because plaintiff was aggrieved by an unsolicited fax that it received. Instead, the retainer agreement provided that plaintiff was to send to plaintiff’s counsel any unsolicited fax it received so that plaintiff’s counsel could determine whether a violation of the Telephone Consumer Protection Act had occurred.

Class certification denied.