Blitz v. Agean, Inc.

Blitz v. Agean, Inc., 

 STATE OF NORTH CAROLINA                        IN THE GENERAL COURT OF JUSTICE
                                                    SUPERIOR COURT DIVISION
 COUNTY OF DURHAM                                          05 CVS 441

 JONATHAN BLITZ, on behalf of himself
 and all others similarly situated,

                Plaintiff,

          v.                                           ORDER & OPINION

 AGEAN, INC.,

                Defendant.


         The Margulis Law Group by Max G. Margulis and J. Blake Norman
         Attorney-at-Law by J. Blake Norman for Plaintiff Jonathan Blitz, on behalf
         of himself and all others similarly situated.

         Hoof & Hughes, PLLC by J. Bruce Hoof for Defendant Agean, Inc.

Diaz, Judge.

   {1}     The Court heard this matter on 19 February 2007 on the Motion of
Plaintiff Jonathan Blitz (“Blitz”) for Class Certification pursuant to Rule 23 of the
North Carolina Rules of Civil Procedure. For the reasons set forth below, and after
considering the Court file, the written Motion, and counsel’s memoranda and oral
arguments, the Court DENIES the Motion.


                                           I.
                             PROCEDURAL BACKGROUND
   {2}     Blitz filed his Complaint on 28 January 2005 in Durham County Superior
Court. Blitz filed an Amended Complaint on 11 February 2005, and the case was
transferred to the North Carolina Business Court and assigned to me as an
exceptional matter on 20 January 2006.
   {3}     On 6 October 2006, Blitz filed a Motion to Amend Class Definition.
    {4}    On 17 October 2006, Blitz filed a Motion for Class Certification.
    {5}    Defendant Agean, Inc. (“Agean”) filed a response to Blitz’s Motion to
Amend Class Definition on 26 October 2006 and a Revised Brief in Opposition to
Blitz’s Motion for Class Certification 1 on 13 November 2006.
    {6}    Blitz filed a Reply to Agean’s Brief in Opposition to Class Certification on
22 November 2006, and he filed a Citation to Supplemental Authority in Support of
the Motion for Class Certification on 1 February 2007.
    {7}    The Court heard oral arguments on the Motion for Class Certification on
19 February 2007.


                                                   II.
                                            THE FACTS
                                                   A.
                                           THE PARTIES
    {8}    Blitz is a resident of Durham County, North Carolina. (Am. Compl. ¶ 1.)
    {9}    Agean is a North Carolina corporation that operates a restaurant known
as “Papas Grille” in Durham, North Carolina. (Am. Compl. ¶ 2; Def.’s Revised Br.
Opp’n Pl.’s Mot. Class Certification Ex. A, at 4.)
                                                   B.
                                           THE CLAIMS
    {10} Since Papas Grille has been in operation, it has, on average, served
between 120 and 160 meals per day. (Def.’s Revised Br. Opp’n Pl.’s Mot. Class
Certification Ex. A, at 5.) Based on that estimate, Papas Grille has served more
than 500,000 meals in its twelve years of operation. (Def.’s Revised Br. Opp’n Pl.’s
Mot. Class Certification Ex. A, at 5.)
    {11} From its inception as a going concern, Papas Grille has also received
numerous inquiries concerning its hours, menus, accommodations, and capacity;

1 On 8 November 2006, the Court denied Agean’s Motion to Modify Length Requirement of Brief and

struck Agean’s original Brief in Opposition to Blitz’s Motion for Class Certification for failure to
comply with Rule 15.8 of the General Rules of Practice and Procedure for the North Carolina
Business Court. (Order, Nov. 8, 2006.)
and numerous requests that Papas Grille fax or e-mail its menus and other
materials relating to the restaurant or its services. (Def.’s Revised Br. Opp’n Pl.’s
Mot. Class Certification Ex. A, at 4–5.)
    {12} Papas Grille provides its customers with “customer information cards”
which they may, but are not required to, complete. (Def.’s Revised Br. Opp’n Pl.’s
Mot. Class Certification Ex. A, at 5.) Although Papas Grille maintains a customer
list based on completed customer information cards, it does not maintain an
exhaustive list of its contacts or patrons. (Def.’s Revised Br. Opp’n Pl.’s Mot. Class
Certification Ex. A, at 5.)
    {13} In April 2004, Agean purchased a list of over 900 fax numbers for
businesses in the three zip codes surrounding Papas Grille (the “List”). (Mem.
Supp. Pl.’s Mot. Class Certification Ex. 2; Mem. Supp. Pl.’s Mot. Class Certification
Ex. 3, Papanikas Dep. 60:22–61:4, 66:5–8, 93:17–18, Sept. 6, 2006.)
    {14} After it purchased the List, Agean contracted with nonparty Concord
Technologies to send fax advertisements to the numbers on the List. (Mem. Supp.
Pl.’s Mot. Class Certification Ex. 3, Papanikas Dep. 88:9–96:8; Mem. Supp. Pl.’s
Mot. Class Certification Ex. 4.)
    {15} Agean did not know, and made no effort to determine, whether any of the
businesses on the List had contacted or been customers of Papas Grille, or whether
any of them had given Agean permission to send them fax advertisements. (Mem.
Supp. Pl.’s Mot. Class Certification Ex. 3, Papanikas Dep. 73:10–77:4.)
    {16} During 2004, Concord Technologies successfully transmitted 7,000 fax
advertisements to the numbers on the List on behalf of Agean.2 (Compare Mem.
Supp. Pl.’s Mot. Class Certification Ex. 2 with Mem. Supp. Pl.’s Mot. Class
Certification Ex. 3, Papanikas Dep. 104:20–106:2.)
    {17} Blitz received several of these fax advertisements. (Mem. Supp. Pl.’s Mot.
Class Certification Ex. 5, Blitz Dep. 73:3–11, 73:21–74:6, Sept. 6, 2006.)



2 The fax advertisements stated the hours and location of Papa’s Grille and included a coupon for a

free cup of coffee or lunch. (Mem. Supp. Pl.’s Mot. Class Certification Ex. 1.)
   {18} Blitz alleges that Agean’s fax advertisements violated the Federal
Telephone Consumer Protection Act (“TCPA”), 

, which, inter alia,
prohibits the transmission of “unsolicited advertisements” to fax machines. (Am.
Compl. ¶ 10.)
   {19} Blitz seeks certification on behalf of a class alleging that Agean violated
the TCPA when its agent, Concord Technologies, faxed thousands of single-page
unsolicited advertisements regarding Agean’s services. (Am. Compl. ¶ 10.)
   {20} Pursuant to the TCPA, Blitz seeks $500 in statutory damages for each
member of the putative class, statutory treble damages based on allegations that
the violations were willful or knowing, and injunctive relief. (Am. Compl. Prayer for
Relief ¶¶ 2–3.)


                                                 III.
                                   CONCLUSIONS OF LAW
   {21} Blitz’s Motion for Class Certification defines the proposed class as:
       All persons and other entities to whom Defendant sent or caused to
       be sent, one or more facsimile advertisement transmissions
       promoting the restaurants of Defendant from February 12, 2001
       until February 11, 2005 inclusive, and excluding those persons and
       other entities who had an established business relationship with
       Defendant at the time said facsimile advertisement transmissions
       were sent. 3

(Pl.’s Mot. Class Certification 6.)
   {22} This Court addressed the issue of class certification under the TCPA in
Blitz v. Xpress Image, Inc., 

 (N.C. Super. Ct. Aug. 23, 2006),
http://www.ncbusinesscourt.net/opinions/2006%20NCBC%2010.htm. In that case,
the Court denied class certification on the grounds that (1) issues individual to each
purported class member predominated over common issues, and (2) a class action
was not the superior method for resolving the claims. Id. ¶ 1.


3 Blitz defines his proposed class in a manner different from that originally pled in his Amended

Complaint. (See Am. Compl. Prayer for Relief ¶ 1.) Although Agean objects to the purported
amendment, the Court overrules the objection and elects to consider the newly defined class.
   {23} In his moving papers, Blitz attempts to distinguish the present case from
Xpress Image on four grounds: (1) Agean, unlike the defendant in Xpress Image,
admits that it did not seek permission to send the fax advertisements, (2) Agean,
unlike the defendant in Xpress Image, purchased an anonymous list of fax numbers
rather than gathering them from a directory of fellow chamber of commerce
members, (3) Blitz has excluded entities that have existing business relationships
with Agean from his class definition, and (4) new case law supports class
certification under the TCPA. (Mem. Supp. Pl.’s Mot. Class Certification 14–18;
Pl.’s Reply Def.’s Br. Opp’n Class Certification 2–5, 8–9.)
   {24} Because, however, the factors identified in Blitz’s moving papers do not
distinguish this case from Xpress Image, the Court, consistent with its opinion in
Xpress Image, DENIES Blitz’s Motion for Class Certification.
                                           A.
                       CLASS CERTIFICATION STANDARD
   {25} In North Carolina, class actions are governed by Rule 23 of the North
Carolina Rules of Civil Procedure (“Rule 23”). Rule 23(a) provides that “[i]f persons
constituting a class are so numerous as to make it impracticable to bring them all
before the court, such of them, one or more, as will fairly insure the adequate
representation of all may, on behalf of all, sue or be sued.” N.C. R. Civ. P. 23(a).
   {26} “The party seeking to bring a class action under Rule 23(a) has the burden
of showing that the prerequisites to utilizing the class action procedure are
present.” Crow v. Citicorp Acceptance Co., 

, 

(1987).
   {27} The requirements for class action certification are: (1) the existence of a
class, (2) the class members within the jurisdiction of the court must adequately
represent any class members outside the jurisdiction of the court, (3) the class must
be so numerous as to make it impracticable to bring each member before the court,
(4) more than one issue of law or fact common to the class should be present, (5) the
party representing the class must fairly insure the representation of all class
members, and (6) adequate notice must be given to the class members. 

 at 282–
84, 354 S.E.2d at 465–66.
   {28} “[A] ‘class’ exists under Rule 23 when the named and unnamed members
each have an interest in either the same issue of law or of fact, and that issue
predominates over issues affecting only individual class members.” 

, 

.
   {29} To determine whether common issues predominate over issues affecting
only individual class members, the Court does not simply line up the number of
common issues against those that require individual consideration. Rather, the test
is whether the individual issues are such that they will predominate over common
ones in terms of being the focus of the litigants’ efforts. See Harrison v. Wal-Mart
Stores, Inc., 

, 550–53, 

, 327–28 (2005); see also
Kondos v. Lincoln Prop. Co., 

 (Tx. Ct. App. 2003) (observing the
same in the TCPA context).
   {30} Further, “[w]here all the prerequisites are met, it is within the trial court’s
discretion to determine whether ‘a class action is superior to other available
methods for the adjudication of th[e] controversy.’” Harrison, 

,

 (quoting Crow, 

, 

). “‘[T]he trial
court has broad discretion in [deciding whether a class action should be certified]
and is not limited to consideration of matters expressly set forth in Rule 23 or in’
case law.” 

 at 548 n.2, 

 n.2 (quoting Crow, 

, 

).
                                          B.
                  PREVALENCE OF INDIVIDUALIZED INQUIRIES
   {31} The TCPA prohibits only “unsolicited” advertisements, see 

(c) (LEXIS through 2007 legislation), which are defined 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.” 

(a)(5) (LEXIS through 2007 legislation). Under the
TCPA, a person can give their “express invitation or permission” to receive fax
advertisements either “orally or in writing.” Carnett’s, Inc. v. Hammond, 

 (Ga. 2005); see also Livingston v. U.S. Bank, N.A., 

 (Col. Ct. App. 2002) (noting that “the TCPA does not require consent to be
given in writing, and it may be given orally”).
    {32} Furthermore, several courts, including this Court, have interpreted the
TCPA to include an exception from liability for fax advertisements sent to any
entity with which the sender has an “established business relationship.” 4 See
Xpress Image, 

 ¶¶ 32–36.
    {33} As originally enacted, the TCPA established an exception for automated
telephone solicitations made to “any person with whom the caller has an established
business relationship.” 

(a)(4) (LEXIS through 2007 legislation).
Pursuant to 

(b)(2), which authorizes the Federal Communications
Commission (“FCC”) to issue regulations interpreting the TCPA, the FCC defined
an “established business relationship” as “a prior or existing relationship formed by
a voluntary two-way communication between a person or entity and a residential
subscriber with or without an exchange of consideration . . . which relationship has
not been previously terminated by either party.” 

(f)(4) (2006).
    {34} In a subsequent order interpreting the TCPA, the FCC determined that
the “established business relationship” exception also applied to the provisions
prohibiting unsolicited facsimile advertisements. In re Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R. 8752,
8779 n.87 (Oct. 16, 1992) (stating that “facsimile transmission from persons or
entities who have an established business relationship with the recipient can be
deemed to be invited or permitted by the recipient”).5


4 As he did in  Xpress Image, Blitz argues that there is no “established business relationship”
exemption from liability under the TCPA. (Mem. Supp. Pl.’s Mot. Class Certification 16–17; Pl.’s
Reply Def.’s Br. Opp’n Class Certification 8–9.) In Xpress Image, the Court, after much discussion,
determined that there is an “established business relationship” exemption under the TCPA and that
the Court could consider it on a motion for class certification. 

 ¶¶ 47–51. Having so
concluded in its previous opinion, the Court declines to revisit that issue here.
5 In 2005, Congress enacted the Junk Fax Prevention Act of 2005 (“JFPA”), 

(b)(1)(C),

which amended the TCPA to codify the “established business relationship” exception to TCPA
liability in the facsimile context. 

(b)(1)(C)(i) (LEXIS through 2007 legislation).
    {35} In Xpress Image, this Court held that class certification of claims arising
under the TCPA was improper because issues individual to each recipient of the
defendant’s fax advertisement, i.e., whether the defendant had either “prior express
invitation or permission” to send fax advertisements to a recipient or an
“established business relationship” with a recipient, would predominate over issues
common to the entire class. 

 ¶¶ 37–60.
    {36} Blitz argues that issues individual to each recipient of Agean’s fax
advertisement will not predominate over issues common to the proposed class in
this case because: (1) Agean did not seek permission to send the fax
advertisements, (2) Agean purchased an anonymous list of fax numbers rather than
gathering them from a directory of fellow chamber of commerce members, and (3)
Blitz has excluded entities that have established business relationships with Agean
from his class definition. (Mem. Supp. Pl.’s Mot. Class Certification 14–18; Pl.’s
Reply Def.’s Br. Opp’n Class Certification 2–5, 8–9.)
    {37} The first two distinctions, Blitz argues, show that whether Agean had
“express permission” to send fax advertisements to a recipient will not be an issue
here because “any claim to express invitation or permission to send the faxes in this
case is completely without both merit or [sic] even a scintilla of evidence.” 6 (Mem.
Supp. Pl.’s Mot. Class Certification 5, 14–15.) He continues that the hypothetical
existence of individual issues for which there is little basis in fact is not a sufficient
basis to deny class certification. (Mem. Supp. Pl.’s Mot. Class Certification 5.)
    {38} In Xpress Image, however, I found that the record was silent as to evidence
that the defendant sought or received “prior express permission or invitation” from
any of the recipients to send the facsimile advertisements. See 

.
I then concluded that this void in the record was “not dispositive, as the Court
would still be required to conduct an individualized inquiry of each purported class

Although this provision of the JFPA does not apply to the present case, it provides support for the
Court’s position that Congress always intended for the “established business relationship” exception
to apply to facsimile advertisements.
6 The Court also understands Blitz’s argument to be that, unlike Xpress Image, where the record was

silent as to proof of express permission or invitation, there is evidence here to show that no recipient
gave Agean express permission or invitation to send the fax advertisement.
member to determine whether each class member gave ‘prior express invitation or
permission.’” Id. ¶ 43.
    {39} Thus, that Agean made no effort to determine whether any of facsimile
recipients had given prior express invitation or permission to receive the
advertisements does not distinguish this case in any significant way from Xpress
Image. Because the List includes facsimile numbers in the three zip codes
surrounding Papas Grille, it is likely that some of the recipients had given prior
express permission. Thus, just as in Xpress Image, “there is no avoiding an
individualized inquiry into the facts and circumstances of each recipient’s
‘invitation and permission’ should this matter proceed as a class action, and this is
so regardless of what the evidence now tends to show on the issue.” Id. ¶ 46.
    {40} Furthermore, the Court cannot avoid an individualized inquiry into the
facts and circumstances of each recipient’s “prior express invitation or permission”
regardless of who bears the burden of proof on this issue. 7 As the Court stated in
Xpress Image and reiterates here:
        whether the issue is denominated an element of the claim or an
        affirmative defense is . . . immaterial on the question of class
        certification. The point remains that if a class is certified, this
        Court will need to make individual determinations as to whether a
        recipient gave permission to receive the facsimile advertisements.

. As in Xpress Image, the predominance of this individualized
issue is sufficient to deny class certification here.
    {41} Even if it was not, however, the issue of whether each recipient had an
“established business relationship” with Agean is another basis for denial of Blitz’s
Motion for Class Certification.
    {42} Blitz argues that the Court can avoid determining whether each recipient
had an “established business relationship” with Agean because he has excluded


7 Blitz argues that the Defendant in an action under the TCPA bears the burden of proof to

demonstrate that it had permission to send the fax advertisement. (Pl.’s Reply Def.’s Br. Opp’n
Class Certification 2–5.) However, in Xpress Image, this Court held that the issue of “express
invitation or permission” is part of each individual plaintiff’s burden. 

 ¶ 40 (citing Forman v. Data
Transfer, Inc., 

 (E.D. Pa. 1995)).
such entities from his class definition. (Mem. Supp. Pl.’s Mot. Class Certification
15–16.)
   {43} Blitz claims that “if any inquiry into existence of an [established business
relationship] occurs, it will occur at the claims processing stage of this proceeding . .
. [where] potential class members must answer questions in writing on the claim
form to determine if they are members of the class . . . .” (Mem. Supp. Pl.’s Mot.
Class Certification 15.)
   {44} The Court finds Blitz’s argument on this point unpersuasive.
   {45} Here, as in Xpress Image, it is undisputed that Agean sent fax
advertisements exclusively to recipients in the geographic area near its restaurant.
(Mem. Supp. Pl.’s Mot. Class Certification Ex. 2; Mem. Supp. Pl.’s Mot. Class
Certification Ex. 3, Papanikas Dep. 60:22–61:4, 66:5–8, 93.)
   {46} Given that, during the twelve years that Papas Grille has been in
operation, it has, on average, served between 120 and 160 meals per day (Def.’s
Revised Br. Opp’n Pl.’s Mot. Class Certification Ex. A, at 5), and that Papas Grille
has received numerous inquiries concerning its hours, menus, accommodations, and
capacity; and numerous requests that Papas Grille fax or e-mail its menus and
other materials relating to the restaurant or its services (Def.’s Revised Br. Opp’n
Pl.’s Mot. Class Certification Ex. A, at 4–5), it is highly likely that Agean has an
established business relationship with at least some of the recipients of its fax
advertisements.
   {47} Thus, the Court, as in Xpress Image, would have to determine “who among
the class are [Agean’s] prior customers and who . . . may have visited [Agean’s]
business or made an inquiry regarding [Agean’s] services by telephone, the internet,
or otherwise . . . as those putative plaintiffs arguably fall within the ‘established
business relationship’ exception.” 

.
   {48} This inquiry cannot be avoided merely by defining the class in such a way
as to exclude entities that have an established business relationship with Agean.
As the Court stated in Xpress Image, “[r]egardless of how the class is defined . . .
the question a court must always address at the certification stage is whether
individual issues regarding the putative class members will predominate over
common ones with regard to the focus of the litigants’ efforts.” Id. ¶ 45 (emphasis
added).
   {49} Furthermore, it would be inappropriate for the Court to determine which
recipients of Agean’s fax advertisement had an “established business relationship”
with Agean during the claims processing stage of a class action lawsuit.
   {50} Determining whether a potential class member has an “established
business relationship” with Agean is a multifaceted inquiry where both the
potential class member and Agean are entitled to present evidence for and against
the existence of the relationship.
   {51} Given that anyone who visited Papas Grille or made an inquiry regarding
Agean’s services by telephone, the internet, or otherwise arguably falls within the
“established business relationship” exception, see 

(f)(4) (2006),
determining whether a facsimile recipient had an “established business
relationship” with the Defendant would require a jury to weigh a variety of evidence
any time Agean contested the issue.
   {52} As Agean notes, the inquiry is further complicated here because the fax
advertisements were sent to businesses, rather than to individuals. (Def.’s Revised
Br. Opp’n Pl.’s Mot. Class Certification 8.) Since an “established business
relationship” arguably exists between Agean and a business if any of the business’s
employees visited Papas Grille or made an inquiry regarding Agean’s services, see

(f)(4) (2006), the Court would be required to determine the
identities of the business’s employees and the extent of each employee’s contact with
Agean to determine Agean’s liability to the recipient under the TCPA. 8 (Def.’s
Revised Br. Opp’n Pl.’s Mot. Class Certification 9.)




8 The Court expresses no opinion as to whether a business has an “established business relationship”

with Agean on account of contacts between Agean and the business’s employees. Rather, the Court
merely states that such contacts must be considered in determining the existence of such a
relationship.
   {53} Thus, contrary to Blitz’s suggestion, 9 the Court may not decide this issue
based solely on a potential class member’s answer to a question on a claim form.
Certainly, a claim form could remove those potential class members who admitted
they visited Papas Grille or made an inquiry regarding Agean’s services from the
class; however, the Court would still have to determine whether those potential
class members who denied visiting Papas Grille or making an inquiry regarding
Agean’s services actually had an “established business relationship” with Agean any
time Agean asserted that such a relationship existed.
   {54} As in Xpress Image, this “established business relationship” analysis,
which is individual to each potential class member, will, along with the issue of a
recipient’s express invitation or permission, be the likely object of most of the
litigants’ efforts, and, therefore, provides an additional basis for denying class
certification.
                                                C.
                                        SUPERIORITY
   {55} In Xpress Image, the Court found that there was no bar to pursuing the
TCPA’s $500.00 statutory remedy in small claims court, and Blitz has not presented
any evidence to assail that conclusion. 10
   {56} As the Court stated in Xpress Image and reiterates here:
       In light of this reasonably available and relatively convenient
       alternative forum, and because proceeding via a class action would
       require a series of mini-trials as to the issues of “express permission”
       and an “established business relationship” for an indeterminate
       number of the [recipients] sought to be joined in this lawsuit, I find (in



9 In his moving papers, Blitz suggests that determining whether a potential class member had an

“established business relationship” with Agean could be answered by simply asking them if they had
eaten at Papas Grille. (Mem. Supp. Pl.’s Mot. Class Certification 15–16.) Such an approach,
however, ignores the myriad ways in which an “established business relationship” might be created.
10 As in Xpress Image, Blitz’s Amended Complaint seeks injunctive relief, a remedy explicitly

authorized under the TCPA, see 

(b)(3)(A) (LEXIS through 2007 legislation), and not
available in small claims court. See N.C. Gen. Stat. § 7A–210 (LEXIS through 2007 legislation).
Other than the advertisements that form the basis for Blitz’s Amended Complaint, however, Blitz
has presented no evidence that Agean has committed other TCPA violations such that an injunction
is necessary to grant complete relief.
      the exercise of my substantial discretion) that a class action is neither
      a feasible nor a superior method for resolving the claims.

.
   {57} The fact that a class action is not superior to other available methods for
resolving the individual claims is another reason to deny class certification here.
                                          D.
                                RECENT DECISIONS
   {58} Finally, Blitz cites three recent decisions from foreign jurisdictions, Kavu,
Inc. v. Omnipak Corp., No. C06–109RSL, 

 (W.D. Wash.
Mar. 13, 2007), Gene & Gene, Inc. v. Biopay, LLC, 

 (M.D. La. Dec. 20,
2006), and Lampkin v. GGH, Inc., 

 (Okla. Civ. App. 2006), that support
his Motion for Class Certification. Blitz asserts that these recent decisions, all
entered since the Court’s holding in Xpress Image, justify class certification here.
(See Pl.’s Reply Def.’s Br. Opp’n Class Certification 1–2; Citation Supplemental
Authority Supp. Pl.’s Mot. Class Certification.)
   {59} The Court, having considered each opinion, disagrees.
   {60} In Kavu, Biopay, and Lampkin, each court found that issues common to
the class would predominate over issues individual to each potential class member,
see Kavu, 

, at *9–13, *22; Biopay, 240 F.R.D. at 242–43;
Lampkin, 

, and consequently determined that a class action
was a superior method for adjudicating claims under the TCPA. See Kavu, 

, at *20–24; Biopay, 240 F.R.D. at 246–47; Lampkin, 146 P.3d
at 855–56.
   {61} Although each court recognized that whether the defendant had either
“express permission” to send fax advertisements to a potential class member or an
“established business relationship” with a potential class member would be an issue
in the case, see Kavu, 

, at *9–11; Biopay, 

; Lampkin, 

, none of the courts discussed how they
proposed to decide the issue without a series of mini-trials. 11
    {62} This Court, like the courts in Kavu, Biopay, and Lampkin, recognizes that
there are several factual and legal issues in this case that would be common to all
potential class members. However, this Court takes a different view as to which
issues, those common to the potential class or those individual to each potential
class member, will predominate.
    {63} Because, I find that the issues individual to each potential class member
will be the object of most of the litigants’ efforts, I respectfully disagree with the
reasoning of the Kavu, Biopay, and Lampkin courts.


                                                IV.
                                         CONCLUSION
    {64} The Court DENIES Blitz’s Motion for Class Certification.


        This the 25th day of June, 2007.




11 InBiopay, the court recognized the difficulty it might encounter after it certified a class action
under the TCPA. 

. The court stated that it was “mindful of the concerns expressed
by other courts and by the defendants that class certification may result in a slew of mini-trials to
determine individual issues regarding whether the faxes were unsolicited.” 

 Therefore, the court
stated that “should the defendants’ myriad of predictions come true and should class certification
prove unworkable, the court will make the necessary changes to remedy any problems that have
manifested, including decertifying the class.”