ST. LOUIS — U.S. District Judge Catherine Perry has decertified a Telephone Consumer Protection Act (TCPA) class action, finding a lack of proof of class membership.

Perry issued the ruling July 5 in a case that St. Louis Heart Center brought against Vein Centers for Excellence, alleging the marketing firm – which provides graphic design and other services to doctors – sent it and thousands of others "junk faxes." The case was originally filed in St. Louis County Circuit Court in 2011 and was removed to the Eastern District of Missouri in 2012.

According to the ruling, a notice had been sent to potential class members with only one opt-out being returned. 

Heart Center's move for summary judgment followed, as did a request for statutory damages for 35,211 unsolicited fax transmissions, which by law could have netted plaintiffs up to $17.6 million.

Perry denied summary judgment because, "no absent class member could prove that they were 'sent' a Vein Centers junk fax, as required by the class definition" based on the evidence presented, she wrote.

"Although Heart Center provided evidence of the number of successfully transmitted junk faxes by Vein Centers, there was no evidence of exactly which fax numbers were successfully sent the junk faxes, and so the plaintiff class was not entitled to summary judgment."

Vein Centers also sought summary judgment, or alternatively class decertification, which Perry granted. She ruled that the case could proceed to trial with Heart Center as the only named plaintiff. 

"Based on the Eighth Circuit’s recent opinion discussing the ‘ascertainability’ requirement for class certification...and the fact that Heart Center provides no objective criteria or common evidence for identifying potential class members, the class in this case will be decertified," Perry wrote.

Perry further ruled that attorneys for the parties should propose by Thursday a joint proposed schedule for all remaining steps necessary to resolve the case, including proposed trial dates and the anticipated length of the trial.

Heart Center is represented by Max G. Margulis of Margulis Law Group in Chesterfield.

Vein Centers is represented by Don V. Kelly of Evans and Dixon in St. Louis.

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