Duane Morris Takeaways: In a recent opinion in Fischbein v. IQVIA Inc., Case No. 19-CV-5365 (E.D. Pa. June 5, 2025), Judge Nitza I. Quiñones of the U.S. District Court for the 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 ("TCPA"). The Court determined that the TCPA only prohibits receipt of unsolicited ads on a "a traditional stand-alone fax machine" (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. As a result, the Court found that plaintiffs did not satisfy the required ascertainability and predominance elements of class certification.
Background
The proposed class in Fischbein v. IQVIA Inc. 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 "unlawful 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." Id. at 3.
The Court's Decision
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 "use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." See 47 U.S.C. § 227(b)(1)(C) (emphasis added). The statute further defines "telephone facsimile machine" as "equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper." See ECF No. 119, at 8 (citing § 227(a)(3) (emphasis added)). Plaintiffs submitted the testimony of an expert who opined that the phrase "regular telephone line" would include transmissions made by online services so long as it was regulated by the North American Numbering Plan Administrator. Id. at 8-9. But the Court found that this interpretation would "render superfluous" the word "regular" used as a modifier of "telephone line" in the statute. Id. at 9. In fact, the expert's testimony contradicted his expert opinion as he conceded that "regular telephone line" means an "analog telephone line." Id. 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 to either transcribe text or images "from paper" or "onto paper" as stated in the statute, further undermining plaintiffs' argument that the statute was meant to include online fax transmissions. Id. at 10. Indeed, Plaintiffs' expert conceded that such online fax services have the "capacity" to do this type of transcription only when connected to other devices like scanners or printers. Id. at 10. The Court acknowledged that its statutory interpretation was also supported by the Federal Communications Commission's ("FCC") declaratory ruling in In the Matter of Amerifactors Fin. Grp., LLC, 34 F.C.C. Rcd. 11950 (2019).
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 "standing alone, without records to identify class members or a method to weed out unreliable affidavits" would not constitute a reliable or feasible means of determining class membership. See ECF No. 119, at 15 (internal citation and quotations omitted).
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.
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. asking the Court to narrow the class definition to exclude people who used online fax services). This motion is pending before the Court.
Implications for TCPA Defendants
The Fischbein 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.
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