Katz v. Curis Pharmacy, LLC

Background

Bruce E. Katz d/b/a Juva Skin and Laser Center challenged Curis Pharmacy, LLC’s alleged widespread sending of unsolicited fax advertisements under the Telephone Consumer Protection Act and the Junk Fax Prevention Act. The complaint alleged that Katz received at least one fax from Curis on June 29, 2020, without consenting to receive faxes and without having a prior relationship with Curis. It also alleged that the same advertisements were sent to more than 40 other recipients.

Katz sought statutory damages, potentially increased damages, and an injunction on behalf of himself and a proposed class. Curis was served but never appeared. Katz obtained a clerk’s certificate of default, but instead of immediately seeking final judgment, he moved for class certification and permission to conduct discovery to identify class members and determine damages.

Class-Certification Analysis

The court explained that a defendant’s default does not relieve the court of its independent duty to determine whether the requirements of Federal Rule of Civil Procedure 23 are met. The party seeking certification must prove each required element by a preponderance of the evidence.

The court held that Katz had not shown that the proposed class was ascertainable. Ascertainability requires a class definition that is definite enough for the court to determine, using objective criteria, who belongs in the class. Katz’s complaint and motion asserted that Curis’s records would identify class members but did not explain how recipients could determine whether Curis claimed to have obtained permission to fax them in the same manner it claimed to have obtained permission to fax Katz. As a result, potential class members could not determine their membership based on the proposed definition.

The court also found that Katz had not established numerosity. Although the complaint alleged that more than 40 other recipients, or possibly thousands of recipients, received the same advertisements, those assertions were based on information and belief and lacked supporting evidence. The court stated that this issue could be investigated through discovery.

The court found commonality adequately alleged because the proposed class members could share questions about whether they consented to the faxes, whether they had prior dealings with Curis, whether the advertisements violated the Junk Fax Prevention Act, whether the faxes included proper opt-out notices, and whether statutory or increased damages were available. The court also found typicality and adequacy adequately shown because Katz alleged that he received an unsolicited fax through the same alleged course of conduct and had no conflict with the proposed class.

For the Rule 23(b)(3) requirements, the court found predominance satisfied because important issues—including whether Curis sent the advertisements by fax, whether the advertisements were unsolicited, and whether they contained proper opt-out notices—could be resolved through evidence applying to the class as a whole, even though some issues might require individual proof. The court also found that a class action was superior because the damages available to individual recipients might be too small to make separate lawsuits practical.

Discovery and Disposition

The court granted Katz’s motion for limited discovery concerning class membership and damages. It reasoned that discovery could provide information needed to evaluate the Rule 23 requirements and was appropriate even though Curis had not appeared.

The court denied Katz’s motion for class certification without prejudice to renewal. It did not enter class certification or decide the ultimate liability and damages issues under the Junk Fax Prevention Act. The court stated that discovery would run for 120 days and that any renewed class-certification motion should be filed within 128 days after entry of the opinion and order. Judge Vernon S. Broderick signed the order.