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The Taranto Group contracted with two outside vendors to send out advertising via facsimile transmissions on its behalf. It was later calculated that at least 5,000 transmissions were made in violation of the Telephone Consumer Protection Act (TCPA). A doctor brought an action individually and as a class representative against the Taranto Group, seeking damages and injunction relief under the TCPA and tort damages for conversion. A professional corporation then sought to intervene as an additional class representative. The district court issued an order certifying the proposed class and, in an amended order, certified the order for interlocutory appeal. The Supreme Court affirmed the district court's determination that class certification was appropriate in this case, holding, among other things, that the district court (1) correctly found the plaintiffs met their burden of demonstrating that they met the statutory requirements for class certification, (2) properly determined that a class action in this case was superior to individual small claims actions, and (3) properly concluded that a class action would avoid inconsistent adjudications.
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IN THE SUPREME COURT OF THE STATE OF KANSAS
CRITCHFIELD PHYSICAL THERAPY,
Individually and as the Representative of a
Class of Similarly Situated Persons,
THE TARANTO GROUP, INC.,
SYLLABUS BY THE COURT
Class action lawsuits are based in equity and allow litigation involving classcertified parties where the number of parties interested in the subject of the litigation is so
great that it is impracticable to join them under the usual rules of civil procedure. Class
actions also permit plaintiffs to pool claims that would be uneconomical to litigate
When deciding whether to certify a proposed class for a class action lawsuit, a
district court must rigorously analyze the proffered evidence to determine whether the
plaintiffs have met or are likely to meet the statutory requirements for certification. The
district court is not, however, required to conduct a mini-trial with extensive fact-finding
before certifying a class or denying certification to a class.
It is not necessary that a class description identify every individual member of the
class from the outset. It suffices that the description identifies a group of plaintiffs by
describing a set of common characteristics such that a member of the group may
demonstrate a right to recovery based on the description.
A plaintiff is not required to prove the facts of the underlying cause of action in
order to petition successfully for class certification in a class action lawsuit. Class
certification is purely procedural, and the issue at a class certification hearing is whether
the class action is procedurally preferable, not whether any of the plaintiffs will be
successful in urging the merits of their claims.
Commonality requires a class action plaintiff to demonstrate that the proposed
class members have suffered the same injury, and their claims must depend on a common
contention that is capable of class-wide resolution, meaning that determination of its
validity will resolve an issue that is central to the validity of each of the claims with one
47 U.S.C. § 227 (2006), the Telephone Consumer Protection Act (TCPA),
establishes a hybrid of federal and state law. The federal statute empowers plaintiffs to
seek damages in state courts and empowers state attorneys general to seek damages,
injunctive relief, and penalties in federal courts when there is reason to believe that a
person has engaged in a pattern or practice of telephone calls or other transmissions to
residents of those states in violation of the Act.
A primary purpose of the TCPA is to prevent businesses from shifting their
advertising costs to the recipients of unsolicited fax advertisements.
In prosecuting a claim under the TCPA, it is not necessary that a plaintiff
demonstrate that a facsimile transmission was received by the plaintiff. It suffices that a
plaintiff demonstrates that a facsimile transmission was unlawfully sent by the defendant.
In a class action lawsuit, the named representatives of the plaintiff class assume
the burden of proving the total class-wide damages rather than the individual damages of
each member of the class.
One underlying policy of the class action mechanism is to overcome the problem
that small recoveries provide little incentive for individuals to bring solo actions to
protect their rights.
In a class action lawsuit, notice requirements and due process mandate that it must
be possible to determine from the class definition whether a particular individual is part
of the class.
A named class action plaintiff is not required to allege the exact number or identity
of the class members, but the class definition must be sufficiently specific that it is
possible to determine whether a party is a member of the class.
In a class action lawsuit, a trial court retains the ability to modify a class at any
time before final judgment.
Aggregate proof of a defendant's monetary liability promotes the deterrence
objectives of the substantive laws underlying class action lawsuits.
The phrase "incompatible standards of conduct" as used in K.S.A. 2010 Supp. 60223(b)(1)(A) may refer to evaluations of past, present, or future conduct.
The phrase "end user" is subject to various definitions depending on context and
does not provide a precise definition of a prospective class member without additional
Appellate courts are to render judgment without regard to technical errors and
irregularities in the proceedings of the trial court.
Kansas courts are under no requirement to address explicitly every legal authority
raised by a party, especially out-of-jurisdiction authority that is not binding on our courts.
Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed September
30, 2011. Affirmed and remanded with directions.
Leonard R. Frischer, of Frischer & Associates, Chtd., of Overland Park, argued the cause, and
Mark B. Schaffer, of the same firm, was with him on the briefs for appellant.
Rex A. Sharp, of Gunderson, Sharp & Walke L.L.P., of Prairie Village, argued the cause, and
Barbara C. Frankland, of the same firm, and Max Margulis, of Margulis Law Group, of Chesterfield,
Missouri, Brian J. Wanca, and Ryan Kelly, of Anderson & Wanca, of Rolling Meadows, Illinois, and
Phillip A. Bock and Tod A. Lewis, of Bock & Hatch, L.L.C., of Chicago, Illinois, were with him on the
briefs for appellees.
Todd N. Thompson and Sarah E. Warner, of Thompson Ramsdell & Qualseth, P.A., of Lawrence,
were on the brief for amicus curiae Kansas Association of Defense Counsel.
The opinion of the court was delivered by
ROSEN, J.: This is an interlocutory appeal from an order certifying a class of
plaintiffs in an action seeking damages under the Telephone Consumer Protection Act
(TCPA), 47 U.S.C. § 227 (2006).
The Taranto Group, Inc., (Taranto) is a small business incorporated in Kansas and
located in Leawood. Taranto distributes and resells aesthetic medical devices such as
microdermabrasion equipment and medical lasers to physicians and aesthetic
professionals. From March 2005 to March 2008, Taranto contracted with two outside
vendors to send out advertising via facsimile transmissions ("fax" or "fax transmissions")
on its behalf. These vendors were AmeraScope Media, Inc. (AmeraScope), of Nebraska,
which sent faxes from March 2005 to November 2006, and Westfax, Inc. (Westfax), of
Colorado, which sent faxes from February 2007 to March 2008. Taranto did not own or
review the databases or transmission logs used by AmeraScope. AmeraScope purchased
its databases from a third party. Those databases are no longer available. Westfax
obtained its physician database from Taranto, which purchased a "Dr-411" database from
a third party; Taranto did not, however, possess or review the Westfax transmission logs.
Some of the fax recipients may have been customers who had consented to receive
fax transmissions from Taranto or who had an ongoing business relationship with
Taranto, but discovery is incomplete with respect to how many fax targets fell into that
category. In a pleading seeking removal of the action to federal court, Taranto's
predecessor in interest, and the original defendant in this action, calculated that at least
5,000 transmissions were made in violation of the TCPA. See Geismann v. Aestheticare,
LLC, 622 F. Supp. 2d 1091, 1096-97 (D. Kan. 2008). It is estimated that some 122,000
fax transmissions were completed, although not every fax number targeted has been
Radha Geismann, M.D., a Missouri professional, brought an action individually
and as the representative of similarly situated persons against Aestheticare, a Kansas
limited liability company, alleging violations of the TCPA. An amended petition named
the Taranto Group as an additional defendant. The action sought damages and injunctive
relief under the TCPA and tort damages for conversion. Critchfield Physical Therapy,
P.C., d/b/a Montgomery County Physical Therapy (Critchfield), a Missouri professional
corporation, subsequently filed a petition seeking to intervene as an additional class
representative. The parties later stipulated to dismissing Aestheticare, L.L.C., as a party
defendant without prejudice. The parties then stipulated to dismissing Geismann without
prejudice and substituting the intervener Critchfield as the sole individual plaintiff and as
the representative of the proposed class.
The district court issued an order certifying the proposed class and, in an amended
order, certified the order for interlocutory appeal under both K.S.A. 60-223(f) and K.S.A.
60-2102(c). After the Court of Appeals granted Taranto's application for permission to
take an interlocutory appeal, this court granted Taranto's motion to transfer.
The Statutory Framework for Class Actions under the TCPA
Class action lawsuits are based in equity and allow suits where the number of
parties interested in the subject of the litigation is so great that it is impracticable to join
them under the usual rules of civil procedure. Hansberry v. Lee, 311 U.S. 32, 61 S. Ct.
115 41, 85 L. Ed. 22 (1940). Class actions also permit plaintiffs to pool claims that would
be uneconomical to litigate individually. Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
809, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985).
Class action lawsuits are governed by statute in Kansas. K.S.A. 2010 Supp. 60223(a) sets out four requirements for class certification:
"One or more members of a class may sue or be sued as representative parties on
behalf of all members only if: (1) The class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of the claims or defenses of the class;
and (4) the representative parties will fairly and adequately protect the interests of the
These threshold requirements have been summarized as numerosity, commonality,
typicality, and adequacy of representation. Dragon v. Vanguard Industries (Dragon II),
282 Kan. 349, 355, 144 P.3d 1279 (2006); cf. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
___, 131 S. Ct. 2541, 2550, 180 L. Ed. 2d 374(2011) (applying requirements to Federal
Rule of Civil Procedure 23[a]).
The statute continues, in relevant part:
"(b) Types of class actions. A class action may be maintained if the prerequisites
of subsection (a) are satisfied and if:
"(1) Prosecuting separate actions by or against individual members
would create a risk of: (A) Inconsistent or varying adjudications with respect to
individual class members that would establish incompatible standards of conduct
for the party opposing the class; or (B) adjudications with respect to individual
class members that as a practical matter, would be dispositive of the interests of
the other members not parties to the individual adjudications or would
substantially impair or impede their ability to protect their interests; or
"(2) the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole; or
"(3) the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these findings include: (A)
The class member's interest in individually controlling the prosecution or defense
of separate actions; (B) the extent and nature of any litigation concerning the
controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (D) the likely difficulties in managing a class action." K.S.A. 2010 Supp. 60223.
The litigation in the present case was initiated under the TCPA, 47 U.S.C. § 227,
which establishes a hybrid of federal and state law. The federal statute empowers
plaintiffs to seek damages in state courts and empowers state attorneys general to seek
damages, injunctive relief, and penalties in federal courts when there is reason to believe
that a person has engaged in a pattern or practice of telephone calls or other
communication transmissions to residents of those states in violation of the Act.
The TCPA is a federal response to the ever-increasing access through electronic
means that advertisers have to consumers. State legislatures had enacted restrictions on
unsolicited telemarketing before the federal legislation, but such measures had limited
effect because states lacked jurisdiction over interstate calls. It was estimated that some
6.57 billion telemarketing transmissions were being made each year by the early 1990's.
Intern. Science & Tech. Institute v. Inacom Comm., 106 F.3d 1146, 1157 (4th Cir. 1997).
Congress intervened and enacted the TCPA in 1991 to address telemarketing abuses. See
Rudgayzer v. Cape Canaveral, 22 A.D.3d 148, 149, 799 N.Y.S.2d 795 (2005)(discussion
of the historical background of the TCPA).
During the debates regarding the "junk fax" provision of the TCPA, Congressman
Edward Markey (D-MA) stated:
"Every time someone junk faxes you, it is your paper that is coming out of the
machine. You are paying for that paper. Your machine is tied up. It is absolutely one of
the most irritating things to people, to have to pay for someone else coming into your
home or your business when you do not want them there. It is essentially a tax which is
paid by the recipient of something that they never asked for in the first place." 151 Cong.
Rec. H 5264 (daily ed. June 28, 2005).
In short, the primary purpose of the TCPA is to prevent businesses from shifting
their advertising costs to the recipients of unsolicited fax advertisements. See Phillips
Randolph v. Adler-Weiner Research Chicago, 526 F. Supp. 2d 851, 852 (N.D. Ill. 2007).
The TCPA prohibits, among many other practices, the use of "any telephone
facsimile machine, computer, or other device to send, to a telephone facsimile machine,
an unsolicited advertisement. " 47 U.S.C. § 227(b)(1)(C). The TCPA only prohibits
"unsolicited" advertising. An "unsolicited advertisement" is 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, in writing or otherwise." 47 U.S.C. § 227(a)(5).
The TCPA creates a private right of action against a sender of an unsolicited
advertisement and provides that, for each violation, a person is entitled to $500 or actual
damages, whichever is greater, as well as treble damages if a court finds the violation to
be willful or knowing. 47 U.S.C. § 227(b)(3). The Act also provides for private causes of
action in state court, and the state courts have exclusive jurisdiction over those actions.
See Foxhall Realty Law Offices v. Telecom. Prem. Serv., 156 F.3d 432, 437-38 (2d Cir.
One consequence of state causes of action is that the private remedy may vary
from state to state. See e.g., Foxhall Realty, 156 F.3d at 438; Intern. Science & Tech.
Institute, 106 F.3d at 1157 (although TCPA private actions may be permitted in some
state courts and not in others, does not violate equal protection); Rudgayzer, 22 A.D.3d at
152 (because TCPA does not specifically authorize class action suits, New York does not
permit class action suits under TCPA under New York class action law); Schulman v.
Chase Manhattan, 268 A.D.2d 174, 178-79, 710 N.Y.S.2d 368 (2000). As a consequence,
decisions in other states, while possibly persuasive in their reasoning, are not binding on
courts in this state.
In 2005, Congress enacted the Junk Fax Prevention Act of 2005, which amended
the TCPA and added language to § 227(b)(1)(C) that prohibits sending an unsolicited
advertisement to a telephone facsimile machine unless "the unsolicited advertisement is
from a sender with an established business relationship with the recipient."
Standard of Review
The standard of review for the decision to certify or not to certify a class is
whether the trial court abused its discretion. The amount and degree of such discretion
depends on the character of the question presented for determination. In general, when
the discretionary decision is made within the legal standards and takes into account the
proper factors, the decision will withstand review even if it appears unwise.
"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based." State v. Ward, 292 Kan. 541, 550, 256 P.3d 801(2011) (citing State v. Gonzalez,
290 Kan. 747, 755–56, 234 P.3d 1 ).
While a trial court has substantial discretion in determining whether a class should be
certified, that decision must be rigorously analyzed in light of the provisions of K.S.A.
2010 Supp. 60-223. Dragon II, 282 Kan. at 354; Bigs v. City of Wichita, 271 Kan. 455,
477, 23 P.3d 855 (2001); Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 217,
843 P.2d 248 (1992); Steele v. Security Benefit Life Ins. Co., 226 Kan. 631, 638, 602 P.2d
The Plaintiff's Burden to Demonstrate Meeting the Statutory Requirements for Class
In a class action lawsuit, the named representatives of the plaintiff class assume
the burden of proving the total class-wide damages rather than the individual damages of
each member of the class. Gilley v. Kansas Gas Service Co., 285 Kan. 24, 29, 169 P.3d
The district court held that plaintiff has the evidentiary burden of proving each
class certification factor, and because class certification comes before merits discovery is
complete, the burden is "light" or "prima facie." The district court would only consider
evidence from the defendant that was undisputed, and it would not determine factual
disputes or judge credibility.
Taranto contends that the district court misstated the governing burden of proof.
Taranto directs us to the "rigorous analysis" language of Dragon v. Vanguard Industries,
Inc. (Dragon I), 277 Kan. 776, 783, 89 P.3d 908 (2004), to support its argument that
plaintiffs must present more than a prima facie case for class certification. There is,
however, a difference between rigorous analysis of statutory factors and a heavy burden
of proof on plaintiffs.
There is little dispute over certain essential facts. Taranto arranged for mass fax
transmissions without regard to whether the targets had an established business
relationship with Taranto or had given permission to receive fax advertising. Such fax
transmissions violate federal law. The only factual disputes involve identifying who the
fax targets were and winnowing out those who gave consent or who had an existing
business relationship with Taranto. These are not trivial matters, but they are explicit
factual matters susceptible to review by this court based on the factual record.
We do not read our holding in Dragon I to require that a district court conduct a
mini-trial with extensive fact-finding before certifying or denying certification to a class.
The district court must rigorously analyze the proffered evidence to determine whether
the plaintiffs have met or are likely to meet the statutory requirements for certification.
In Display South, v. Express Computer Supply, 961 So. 2d 451, 455 (La. App.
2007), the court held:
"It is not necessary for [the plaintiff] to prove the facts of the underlying cause of action.
Class certification is purely procedural. Therefore, the issue at a class certification
hearing is whether the class action is procedurally preferable, not whether any of the
plaintiffs will be successful in urging the merits of their claims. [Citation omitted.]"
The major evidentiary stumbling blocks for the class will be determining to whom
the fax transmissions were sent and whether those parties had given consent or had an
established business relationship with the sender. These are not inherent barriers to class
Although there is no evidence that Taranto intentionally destroyed records in order
to defeat litigation, a defendant cannot escape liability simply by losing or destroying the
list of its victims. See, e.g., Appleton Electric Co. v. Advance-United Expressways, 494
F.2d 126, 139 (7th Cir. 1974) ("Class actions cannot be defeated by destroying records.").
In Sadowski v. Med1 Online, LLC., No. 07C 2973, 2008 WL 2224892, at *3 (N.D. Ill.
2008), the plaintiffs accused the defendants of sending out junk faxes in violation of the
TCPA and sought class certification. In response, the defendants claimed numerosity was
not satisfied because the list of potential plaintiffs had been destroyed and the class size
was speculative because the list of fax numbers no longer existed. The court rejected this
argument, reasoning that a good faith estimate can be sufficient where the class members
are not readily ascertainable. The court found that common sense allowed the inference
that a significant number of the junk faxes allegedly sent by the defendant were sent
unlawfully and that denying class certification would unfairly punish the victims,
especially where the missing list of recipients was last in the defendant's possession. See
also Smith v. Greystone Alliance LLC, ___ F. Supp. ___, No. 09C5585, 2010 WL
2680147, at *3 (N.D. Ill. 2010) (failure to maintain a list of contacts will not defeat class
action; otherwise, debt collectors could freely violate the Fair Debt Collection Practices
Act by electing not to record their messages); Heckert v. MRC Receivables Corp., 254
F.R.D. 344, 348-49 (N.D. Ill. 2008) (master list of potential class members not essential
for class certification if class members can be ascertained by reference to objective
We agree with the reasoning set out in Sadowski and the related cases, and we
conclude that it was unnecessary for the district court to require the plaintiff to prove at
the time of certification that all or most of the potential class were entitled to damages
under the TCPA. It is not necessary that class description identify every individual
member of the class from the outset. It suffices that the description identifies a group of
plaintiffs by describing a set of common characteristics such that a member of the group
may demonstrate a right to recovery based on the description.
The plaintiff presented sufficient evidence and reasonable allegations based on
that evidence and the statutory scheme to allow the district court to conclude that class
certification was appropriate, analyzing each factor in light of the proffered evidence. The
district court fulfilled its requirement to engage in a "rigorous analysis" of the factors for
certification without conducting a trial within a trial to determine the relationship of each
potential class member with the defendant.
Commonality and Predominance
Taranto next contends that two fundamental flaws undermine class certification.
First, it argues, there is no commonality among persons receiving the fax advertising,
because some of those persons may have given consent or may have had an established
business relationship with Taranto. Second, there is no commonality because there is no
proof that the persons on the data lists actually received the fax transmissions.
Commonality requires a plaintiff to demonstrate that the proposed class members
have suffered the same injury and their claims must depend on a common contention that
is capable of class-wide resolution, meaning that determination of its validity will resolve
an issue that is central to the validity of each of the claims with one answer. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. at ___, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011).
Some courts have denied class certification based on the possibility that some
putative class members fall within the statutory exceptions to the ban on fax advertising.
See, e.g., Gene and Gene LLC v. Biopay LLC, 541 F.3d 318, 328-29 (5th Cir. 2008)
(question of consent defeats cohesiveness of class); Kenro, Inc. v. Fax Daily, Inc., 962 F.
Supp. 1162, 1169 (S.D. Ind. 1997) (denying class certification because consent would
have to be proven via individual inquiries as to each class member); Forman v. Data
Transfer, Inc., 164 F.R.D. 400, 404 (E.D. Pa. 1995) (mass fax transmissions did not
constitute a common course of conduct by the defendant but were "a series of individual
transmissions under individual circumstances, each of which is an alleged violation of the
Other courts, however, have considered sending mass fax transmissions to be
conduct susceptible to class action certification.
In Display South, 961 So. 2d at 457, deposition testimony showed that the
defendant possessed a database of customers and prospective customers. This database
indicated numerous faxes were sent during the relevant time frame to over 700 potential
class members. The Louisiana Court of Appeals held:
"The receipt of unsolicited advertisement faxes is common to all the potential class
members, and, in fact, defines the class. This is the claim made by [the plaintiff] and is
not only typical of the claims of the other class members, but is identical to the claims of
the other members.
"[The defendant] contends that because an established business relationship with
the recipient of a faxed advertisement is a defense that precludes a finding of a violation
of the law, individual questions predominate over common issues. However the
arguments made in support of their position go to the merits and not to the issue of class
certification. A class action is a procedural device and confers no substantive rights. The
only issue at the certification hearing is whether the case is one that would benefit from
the procedural classification as a class action. [Citation omitted.] While affirmative
defenses should be considered in determining the merits of maintaining the lawsuit as a
class action, the fact that some plaintiffs may offer a defense does not prohibit
certification of a class. [Citation omitted.] Also, if the trial court determines that a
defense is available to individual members such that maintenance of the class is no longer
feasible, the class can be decertified."
The court in Lampkin v. GGH, Inc., 146 P.3d 847, 852, 854-55 (Okla. App. 2006),
"Defendants assert there is no commonality because the trial court would have to make
inquiries as to whether each potential class member gave permission for Defendants to
send the fax and whether Defendants had a business relationship with each potential
member. We find that the issues involving permission and/or a prior business relationship
do not defeat the 'commonality' of the class members' claims against Defendant.
"First, the class defined by [the plaintiff] consists of only those individuals who
received unsolicited fax advertisements during the specified time period. The use of the
term 'unsolicited' would foreclose argument on the theory that some class members
somehow gave prior permission to Defendants to send the faxes to their fax machines.
Furthermore, we find that Defendants should bear the burden of showing that there are
circumstances that remove their actions from the reach of the TCPA. If the Defendants
want to assert that they either received prior permission from an individual to send the
fax or that there was a prior established business relationship in defense to an individual's
claim that he or she received an unsolicited fax, they should bear the burden of proving
the existence of the permission or relationship. The recipients should not be charged with
proving that they did not give permission or that they did not have a business relationship
with Defendants. We reach this decision on the burden of proving permission or an
established business relationship with the guidance of the FCC's interpretation of an
established business relationship.
". . . The Defendants are in a much better position to show the fax recipients with
whom they had an established business relationship. Potential class members should not
have to show that they did not have an established business relationship with Defendants
in order to become a member of the class. If Defendants choose to assert that they have
an established business relationship with a class member, Defendants may bring forth
evidence in support of their defense. We see no reason to require every potential class
member to prove the absence of an established business relationship where Defendants
are in the best position to show that the TCPA prohibition against junk faxes does not
apply to them due to an established business relationship."
We find the reasoning of these cases persuasive. It will be possible for the
litigation to generate answers in common for the proposed class to questions raised in
common by the class. See Wal-Mart Stores, 564 U.S. at ___, 131 S. Ct. at 2551.
Although Taranto may be able to show that some putative members of the plaintiff class
fall within the statutory exceptions, this possibility does not defeat certification at this
stage of the proceeding. It should be a relatively simple matter to separate those parties
out of the class without requiring a series of mini-trials on the question of consent or an
established business relationship. If Taranto demonstrates that so many parties fall within
the exceptions that the integrity of the class is undermined, then the district court may
consider decertifying the class.
Taranto also argues that the plaintiff class lacks a common interest because it
cannot be shown that the persons listed in the databases received the fax transmissions.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. Hall v. Dillon Companies, Inc., 286
Kan. 777, 785, 189 P.3d 508 (2008). If possible, we ascertain that intent through the
language the legislature employed, giving ordinary words their ordinary meaning. State v.
Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009); see also I.N.S. v. Phinpathya, 464
U.S. 183, 189, 104 S. Ct. 584, 78 L. Ed. 2d 401 (1984) (courts assume Congress
expressed legislative purpose by ordinary meaning of words used).
The TCPA specifically prohibits using electronic devices "to send" unsolicited
advertisements. 47 U.S.C. § 227(b)(1)(C). The statute creates no requirement that a
transmission be received, although the statute addresses exceptions for "recipients" who
had established business relationships or who gave permission for advertisers to send
them fax promotions.
The reality that some plaintiffs may not have received the unlawful fax
transmissions does not defeat their entitlement to damages. Although the harm resulting
from unsolicited fax transmissions is often described in terms of recipients, the harm also
extends to intended recipients, or targets of mass fax advertising. For example, a business
may have considered it necessary to turn off its fax machine because of unwanted fax
transmissions. The business might not have received the advertising, but it would still
have incurred a disadvantage as a result of advertisers sending the fax messages. We
therefore find that the legislation expressly using the word "send" is to be construed to
mean "send" and not "receive."
The Seventh Circuit Court of Appeals has noted:
"Many statutes, notably consumer-protection statutes, authorize the award of damages
(called 'statutory damages') for violations that cause so little measurable injury that the
cost of proving up damages would exceed the damages themselves, making the right to
sue nugatory. . . . The award of statutory damages could also be thought a form of bounty
system, and Congress is permitted to create legally enforceable bounty systems for
assistance in enforcing federal laws, provided the bounty is a reward for redressing an
injury of some sort (though not necessarily an injury to the bounty hunter)[.]" Crabill v.
Trans Union, L.L.C., 259 F.3d 662, 665 (7th Cir. 2001).
Through the plain language of the statute, Congress clearly intended to restrict
business in sending unsolicited fax advertising. This interpretation is consistent with
opinions interpreting the word "call" in the TCPA to include attempts to make telephone
calls, even when the call was not completed. See Lozano v. Twentieth Century Fox Film
Corp., 702 F. Supp. 2d 999, 1007 (N.D. Ill. 2010) (definition of "call" includes to
communicate or attempt to communicate by telephone); Joffe v. Acacia Mortg. Corp.,
211 Ariz. 325, 329-30, 121 P.3d 831 (2005) (TCPA violation requires only that call is
placed and does not require real-time, two-way intercommunication).
We conclude that the TCPA does not require that Taranto successfully completed
a fax transmission but only that Taranto attempted to complete a fax transmission. It will
be unnecessary for plaintiffs to prove that they actually received the transmissions, and
this is not an issue that will defeat commonality.
If some members of the class are later determined to have consented to the
transmission of the fax advertisements, those members may be removed. See, e.g., Blitz v.
Aegean, Inc., 677 S.E.2d 1, 10 (N.C. App. 2009) ("The possibility that some proposed
class members will later be removed should not automatically defeat class
certification."); Display South v. Graphics House Sports Pro., 992 So. 2d 510, 523 (La.
App. 2008) (fact that some putative members of class would eventually be found to have
consented to transmissions did not preclude certification).
Superiority of Class Action over Other Options
K.S.A. 2010 Supp. 60-223(b)(3) states that a class action must be "superior to
other available methods for fairly and efficiently adjudicating the controversy."
The district court found:
"Defendant argues that a class action is not a 'superior method' because
'certification would result in a due process violation given the potential for "horrendous,
possibly annihilating punishment. . . ." Defendant cites various cases involving inapposite
statutes such as the Truth in Lending Act (TILA), Fair Credit Reporting Act (FCRA),
Cable Communications Act, and the Fair Credit and Accurate Credit Transactions Act
(FACTA) cases attempting to support its position. However, this Court finds defendant's
argument premature. A determination of the constitutionality of an Act of Congress is not
appropriate under in [sic]a finding of class certification, but suffice it to say that this legal
issue would be another common question of law for the Class.
"From the perspective of the court system, the class members, and the potential
witnesses, a class action is a superior means of resolving the issues regarding Defendant's
junk faxes, especially when compared to individual actions, because the maximum
recovery for each class member is only $500 and the TCPA does not allow for fee
"Conclusion of Law: The court finds that allowing this class to proceed as a class
action would be a superior use of judicial resources, and K.S.A. 60-223(b)(3) is satisfied.
See Hinman, 208 WL 927910 at *4 ('resolution of the [TCPA] issues on a class wide
basis, rather than in thousands of individual lawsuits would be an efficient use of both
judicial and party resources')."
Other methods are available for adjudicating claims the proposed class seeks to
litigate. One possible alternative to class certification is small claims court. See, e.g.,
Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., 421 N.J. Super. 268, 280-81,
23 A.3d 469, (2011) (where damages under TCPA far exceed actual losses, aggrieved
parties have incentive to prosecute separately in small claims courts); In Blitz v. Xpress
Image, Inc., No. 05CVS679, 2006 WL 2425573, at *10 n.13 (N.C. Sup. Ct. 2006)
(unpublished opinion) (quoting Senator Ernest Hollings of South Carolina suggesting
small claims courts appropriate venues for TCPA violations).
Other courts have found that class action claims under the TCPA represent the
superior remedy. See Sadowski, 2008 WL 2224892, at *5 (superiority requirement is
satisfied in junk fax cases in consumer actions involving small individual claims because
each member's damages too insignificant to provide incentive to pursue claims
individually); Blitz, 677 S.E.2d at 10 (small claims courts cannot per se be superior venue
for violations of the TCPA because they lack authority to grant injunctions); see also
Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997) (policy at core of class
action mechanism is to overcome problem that small recoveries do not provide incentive
for individuals to bring solo actions to protect their rights).
We do not agree with the defendant's contention that over 100,000 individual
small claims actions would be superior to a single class action. While the defendant in
such an action might benefit if only a small number of plaintiffs found it worth their
while to bring suit or were aware of their rights under the TCPA, this small turnout would
serve only to frustrate the intent of the TCPA and to protect junk fax advertisers from
liability. It would, accordingly, not provide a "superior" method for individual plaintiffs.
If, on the other hand, many thousands of plaintiffs elected to pursue their rights in small
claims courts, those courts would be overwhelmed, plaintiffs would have to invest time
and money in prosecuting their claims, and the defendant would have to appear in
thousands of actions around this state and other states. See Landsman & Funk PC v.
Skinder-Strauss Associates, 640 F.3d 72, 95 (3d Cir. 2011) (little reason to believe
individual actions automatically efficient, and thousands of TCPA actions may be more
efficiently brought as single class action).
The small claims alternative is contrary to the policy behind Federal Rule
23(b)(3), which the Kansas statute resembles. The United States Supreme Court has
noted that "[w]hile the text of Rule 23(b)(3) does not exclude from certification cases in
which individual damages run high," the underlying policy of the class action mechanism
is to overcome the problem that small recoveries provide little incentive for individuals to
bring solo actions to protect their rights. Anchem Products, Inc. v. Windsor, 521 U.S. 591,
617, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997).
Taranto argues that one way in which a class action is inferior to numerous
individual actions is because of the threat of an "annihilating" judgment in favor of the
class. This argument in essence informs the court that it has engaged in such widespread
unlawful behavior that the court should give it special protection.
The court in Chevalier v. Baird Sav. Ass'n, 72 F.R.D. 140, 150 (E.D. Pa. 1976),
rejected this kind of argument:
"[W]hether this suit proceeds as a class action or not, the law places joint and several
liability upon the defendants for all injuries caused by any conspiracy of which they were
members. The class action device merely provides a procedure for adjudicating the
respective rights of the parties. If defendants' liability shocks the conscience, it is the fault
of the substantive law which places joint and several liability on co-conspirators, not the
class action. We refuse to hold that the extent of defendants' liability affects the
superiority of the class action procedure in this case."
In Samuel v. University of Pittsburgh, 538 F.2d 991, 996 (3d Cir. 1976), the Third
Circuit Court of Appeals found that the district court had abused its discretion when it
considered the "irrelevant" factor of the financial hardship that a class action judgment
would impose on the defendant as grounds for decertifying a class.
In Circle v. Jim Walter Homes, Inc., 535 F.2d 583, 589 (10th Cir. 1976), the Tenth
Circuit Court of Appeals reversed the denial of class certification that was based in part
on the economic impact on the defendant. The court held:
"[T]he reason given by the court that the damages would be prohibitively high—or in his
words, annihilating—is not a valid basis for refusal to certify. Conceivably the awards at
this juncture may not include treble damages, but even if they do there is nothing in the
record to indicate that this would prove to be annihilating. In any event, the damages flow
from an unlawful trade practice—a practice prohibited by statute—and thus there is no
basis for saying that the award is disproportionate to the magnitude of the violation."
If, as the plaintiffs allege, Taranto engaged in a widespread violation of the law,
then class certification would fulfill a purpose of class action litigation. "[A]ggregate
proof of the defendant's monetary liability promotes the deterrence objectives of the
substantive laws underlying the class actions . . . ." 3 Newberg on Class Actions § 10:5,
487 (4th ed. 2002).
We conclude that the threat of catastrophic judgments should not protect parties
that violate the law on a large scale and is not a relevant factor in determining whether a
plaintiff class should be certified.
K.S.A. 2010 Supp. 60-223(b)(1)(A) establishes one of three alternative
requirements for maintaining a class action lawsuit. This requirement is that either the
prosecution of separate actions would create a risk of inconsistent or varying
adjudications that would establish incompatible standards of conduct for the party
opposing the class, or that adjudications with respect to individual members of the class
would as a practical matter dispose of or impair the interests of the other members who
were not parties to the adjudications.
The district court determined that the requirements of K.S.A. 2010 Supp. 60223(b)(1)(A) were satisfied because separate actions by individual class members might
result in incompatible standards of conduct for Taranto. The court also held that two
courts could reach inconsistent results on defenses such as express consent, established
business relationships, or opt-out notice validity.
Taranto contends on appeal that the statutory inconsistent standards element refers
primarily or exclusively to future conduct. Taranto cites National Union v. Midland
Bancor, Inc., 158 F.R.D. 681, 687 (D. Kan. 1994), holding that federal Rule 23(b)(1)(A),
the federal equivalent of 60-223, requires more than the mere possibility that inconsistent
judgments and resolutions of identical questions of law would result if numerous actions
are conducted instead of one class action.
The National Union court quoted Employers Ins. of Wausau v. Federal Deposit
Ins., 112 F.R.D. 52, 54 (E.D. Tenn. 1986), holding that the risk of "incompatible
standards of conduct" against which Rule 23(b)(1)(A) was designed to protect involves
situations where the non-class party does not know, because of inconsistent
adjudications, whether or not it is legally permissible for it to pursue a certain course of
conduct and where it could be sued for different and incompatible relief.
While this conclusion has some basis in the plain statutory language, which refers
to "incompatible standards of conduct," K.S.A. 2010 Supp. 60-223(b)(1)(A), the
language may also be taken to mean that the class action establishes a standard of
conduct that the non-class party is bound to follow, or it may refer to applying
incompatible standards to past conduct.
The large number of potential plaintiffs in the present case could give rise to
thousands of cases in a variety of courts, and the potential for inconsistent results is
therefore great. This is the problem that the Missouri Court of Appeals addressed when it
recently decided that class certification was the superior means of litigating a TCPA fax
"Class actions are designed to provide an 'economical means for disposing of
similar lawsuits' while simultaneously 'protecting defendants from inconsistent
obligations and the due process rights of absentee class members.' State ex rel. CocaCola Co. v. Nixon, 249 S.W.3d 855, 860 (Mo. banc 2008) (citing United States Parole
Comm'n v. Geraghty, 445 U.S. 388, 402-03, 100 S. Ct. 1202, 63 L. Ed. 2d 479 ).
The underlying question in any class action certification is whether the class action
device provides the most efficient and just method to resolve the controversy at hand."
Karen S. Little, L.L.C., v. Drury Inns, Inc., 306 S.W.3d 577, 583 (Mo. App. 2010)
(affirming TCPA class certification).
The potential for inconsistent results lies most obviously in the question of
damages. Under the TCPA, treble damages are available for "willfully" or "knowingly"
violating the Act. The Louisiana First Circuit Court of Appeal found this provision
sufficient to conclude that inconsistent results might follow in the absence of class
"With the damages being so limited and defined in the statute, the possibility of
inconsistent adjudications is not so likely in TCPA cases as in other types of claims that
have been pursued as class actions. However, there is the possibility that one court might
conclude that the actions of transmitters of faxes in violation of the TCPA were willful
and knowing, justifying the imposition of punitive damages under the statute, while
another court might find that precisely the same actions by the same defendant did not
justify punitive damages. An early decision either imposing or denying such damages
could, as a practical matter, be dispositive of the interests of other potential claimants
who were not parties to that adjudication. Therefore, it is reasonable to pursue such
claims in a class action . . . ." Display South, 992 So. 2d at 520.
We are persuaded that class certification in this case promotes the establishment of
consistent standards for evaluating the defendant's conduct.
Taranto raises an additional argument related to its contention that the
statutory scheme in play in this case is limited to prospective conduct: that K.S.A.
2010 Supp. 60-223(b)(1)(A) does not provide for monetary damages in the
circumstances of the present case, because monetary compensation cannot be
awarded for exclusively future conduct. Taranto cites In re Dennis Greenman
Securities Litigation, 829 F.2d 1539, 1545 (11th Cir. 1987), which "reluctantly" took that
position. The statutory language does not set out this policy, however, and courts have
declined to apply the policy in an absolute fashion.
In Turner v. Bernstein, 768 A.2d 24, 33-34 (Del. Ch. 2000), the court rejected
universal application of the Greenman reasoning. The court noted that in certain kinds of
litigation, the course of conduct would be the same with respect to all the defendants and
that those defendants should reasonably expect consistent judgments:
"In In re Dennis Greenman Securities, the court held that it was improper to certify a
class under Rule 23(b)(1)(A) because 'courts reason that inconsistent standards for future
conduct are not created because a defendant might be found liable to some plaintiffs and
not to others' and 'that if compensatory damage actions can be certified under Rule
23(b)(1)(A), then all actions could be certified under the section, thereby making the
other subsections of Rule 23 meaningless, particularly Rule 23(b)(3).'
"Greenman's logic has some force as to the type of damage cases that frequently come to
federal courts in class action clothing, particularly those diversity class actions that arise
under state tort law. In such class actions, the individual circumstances of each class
member are typically of material importance, and it is not infrequently the case that the
substantive state laws governing class members' individual claims are widely disparate.
But that logic does not apply to cases like this one. In challenges to corporate mergers
brought on behalf of the stockholders not affiliated with the defendants, it is virtually
never the case that there is any legitimate basis that 'a defendant might be found liable to
some plaintiffs and not to others.' [Greenman, 829 F.2d at 1545.] Rather, the actions
involve a challenge to a single course of conduct by the defendants that affects the
stockholder class equally in proportion to their ownership interest in the enterprise.
"That such actions can be certified under Rule 23(b)(1)(A) hardly makes all
claims for damages certifiable under that subsection. Rather, there remains an abundance
of damage claims involving common and uncommon issues of law or fact that can be
asserted on a class basis only by meeting the criteria applicable under the more flexible
Rule 23(b)(3). In this respect, it is in reality the Greenman court's reading that is more
likely to render a subsection of Rule 23(b) meaningless. By holding that a Rule
23(b)(1)(A) class can be certified only for claims for injunctive and declaratory relief, the
Greenman court renders Rule 23(b)(1) largely redundant of Rule 23(b)(2), which
expressly addresses injunctive and declaratory relief." 768 A.2d at 33-34.
We agree with the Turner reasoning, and conclude that monetary damages
are appropriate under K.S.A. 2010 Supp. 60-223(b)(1)(A).
In Merck & Co., Inc. Securities, Derivative & ERISA Litigation, Nos. 05-1151, 052369, 2009 WL 331426, at *11 (D. N.J. 2009), the court noted that the principal authority
underlying the proposition that certification under federal Rule 23(b)(1)(A) applies only
to prospective standards was McDonnell Douglas Corp. v. U. S. Dist. Ct. C. D. of Cal.,
523 F.2d 1083, 1086 (9th Cir. 1975), where that court held: "We cannot read subdivision
(b)(1)(A) so broadly that subdivision (b)(3) applies only to class actions already
maintainable under subdivision (b)(1)(A)." The court then further held:
"This is a far cry from the per se bar against 23(b)(1)(A) money damages cases that
Defendants propose. . . .
"Furthermore, this position inserts a requirement into 23(b)(1)(A) that is not
present. . . . Defendants fail to persuade that a class action case principally seeking
money damages, but also seeking to establish a standard of conduct for Defendants,
cannot qualify under 23(b)(1)(A)." Merck & Co., 2009 WL 331426, at *11.
We conclude that the plain language of K.S.A. 2010 Supp. 60-223(b)(1)(A)
includes standards of conduct for past behavior. This means that a district court, when
evaluating class certification, may consider whether different courts might hold the
parties to standards that are ultimately incompatible. An example of such a standard
would be the extent to which a defendant's conduct was "willful" or "knowing" under 47
U.S.C. § 227(b)(3). The district court in the present case properly considered such factors
in concluding that a class action would avoid inconsistent adjudications.
Objectivity and Specificity of the Class Definition
K.S.A. 2010 Supp. 60-223(c)(1)(B) requires that a certification order define the
class and the class claims, issues, or defenses. Although the statute does not explicitly
require that a class must be defined objectively and in terms of ascertainable criteria,
notice requirements and due process mandate that it must be possible to determine from
the class definition whether a particular individual is part of the class. See, e.g., Hamilton
v. Ohio Sav. Bank, 82 Ohio St. 3d 67, 72, 694 N.E.2d 442 (1998) (class description must
be definite enough to determine whether particular individual is member).
The district court in our case adopted the following class definition:
"The end users of the fax numbers to which Defendant sent or caused to be sent,
one or more facsimile transmissions advertising Defendant's products or seminars during
the period from March 1, 2005 to March 1, 2008."
Taranto initially objects to the phrase "end users," which Taranto complains is
nonsensical because it does not distinguish between the owner of a fax machine and all
those people who make use of that fax machine. The plaintiff responds that the phrase
clearly includes and is limited to the entities or people who purchased or leased the fax
machines or fax-use time for their businesses or personal interests; the definition,
according to the plaintiff, would not include individual employees of a business that
leased a fax machine.
A plaintiff is not required to allege the exact number or identity of the class
members. Holtzman v. Turza, No. 08C2014, 2009 WL 3334909, at *4 (N.D. Ill. 2009).
The class definition must nevertheless be precise enough to allow courts and parties to
determine in advance of adjudication whether a party belongs to the class.
"Care should be taken to define the class in objective terms capable of
membership ascertainment when appropriate, without regard to the merits of the claim or
the seeking of particular relief. Such a definition in terms of objective characteristics of
class members avoids problems of circular definitions which depend on the outcome of
the litigation on the merits before class members may be ascertained . . . ." 2 Newberg on
Class Actions § 6:14, pp. 614-15 (4th ed. 2002).
We agree with Taranto that the definition as worded is not sufficiently precise to
determine which parties are included in the class. The phrase "end user" does not have a
single, authoritative meaning. For example, Black's Law Dictionary 1683 (9th ed. 2009)
defines it as: "The ultimate consumer for whom a product is designed." The phrase can be
found in a wide variety of legal contexts, such as end user license agreements, which
attempt to place use restrictions on final purchasers, typically of computer software. See,
e.g., Mortenson Co. v. Timberline Software, 140 Wash. 2d 568, 998 P.2d 305 (2000); see
also Saltzman v. Pella Corp., 257 F.R.D. 471, 477 (N.D. Ill. 2009) (class definition of
"end users" included only purchasers and not indirect purchasers).
The phrase also appears a number of time in Kansas statutes. See, e.g., K.S.A.
2010 Supp. 2-1201(13); K.S.A. 55-1807(c)(4) ("end retail user" means any consumer,
person, firm or corporation who utilizes liquefied petroleum gas in Kansas"); K.S.A.
2010 Supp. 79-3401(q).
In the area of telecommunications, Kansas statutes distinguish between a service
provider and an "end user." See K.S.A. 66-2011(a) ("As used in this section, . . . .[a]n
'internet service provider' means an entity that provides end user access to the internet.").
K.S.A. 2010 Supp. 79-3673(f)(6), relating to sourcing rules for sale of telecommunication
services, states "(6) 'end user' means the person who utilizes the telecommunication
service. In the case of an entity, end user means the individual who utilizes the services
on behalf of the entity."
Although nothing compels the application of this definition to the present case, it
illustrates possible ambiguity in the definition of the class. Under this definition, there is
the possibility of multiple plaintiffs stemming from one fax transmission—all individuals
at a home or employed by a corporate entity, or any person who happens to "intercept" a
fax advertisement by picking it up. See, e.g., J2 Global Communications, Inc. v. Protus
IP Solutions, No. CV 06-00566, 2010 WL 1609965, at *3 (C.D. Cal. 2010) (fax
transmissions may be intercepted by unintended recipients).
A class including such plaintiffs differs from what Critchfield explained to the
court in its brief and in oral argument—that the class is limited to the owners or lessees of
the fax machines. It is therefore impossible to determine from the class definition who is
included in the class of "end users" of fax numbers.
This flaw is not, however, fatal to the class certification. A trial court retains the
ability to modify a class at any time before final judgment. Dragon v. Vanguard
Industries, 282 Kan. 349, 364, 144 P.3d 1279 (2006) (quoting In re Integra Realty
Resources, Inc., 354 F.3d 1246, 1261 [10th Cir. 2004]; see also Kilgo v. Bowman
Transp., Inc., 789 F.2d 859, 877-78 (11th Cir. 1986) (although expansion of class after
trial "should be viewed with caution," trial court did not abuse discretion by enlarging
class after trial on merits when expansion "simply conformed to what had been proved at
trial," and defendant made no showing of prejudice); 2 Newberg on Class Actions § 6:14,
p. 619 (4th ed. 2002) (federal Rule 23 gives district court broad discretion to modify
definition of class even after certification); 3 Newberg on Class Actions § 7:47, pp. 154,
159 (4th ed. 2002) (class rulings may be altered or amended at any time before decision
on merits; ability of court to reconsider initial class rulings is vital ingredient in flexibility
of courts to realize full potential benefits flowing from judicious use of class actions).
Rather than reverse the certification as overly vague, we note the advantages that a
class action may offer, including judicial economy and protection of consumers' rights,
and direct the district court to modify the class definition to clarify which parties
constitute the plaintiff class.
Taranto also reiterates its earlier argument that a party must actually receive an
unsolicited fax before a violation of the TCPA occurs. Taranto then complains that the
class definition makes no reference to the receipt requirement. As we determined earlier,
receipt is not a statutory component of the unlawful conduct.
Abuse of Discretion in Determining the Ultimate Merits of Taranto's Defenses During
Taranto presented evidence that some fax targets had consented to receiving fax
advertisements and that additional fax targets had an established business relationship
with Taranto. These are absolute defenses under 47 U.S.C. § 227.
The district court found that Taranto had presented no evidence of express prior
consent to send the fax advertisements to the entities on the two lists, and, in fact, Taranto
had never seen one of the lists and had not sought consent from the parties on the other
list. The district court determined that even if, in individual cases, consent was given or
an established business relationship existed, common questions predominated among the
recipients of a mass broadcast. The district court found that the possibly small number of
lawful transmissions would not defeat class certification for the many targets of the
unlawful transmissions. Finally, the district court held, Taranto bore the burden of
proving its affirmative defenses at trial, and it was improper to place the burden on the
plaintiff to establish prior to class certification that the defenses would not apply to all
Taranto complains on appeal that this finding determines the ultimate validity of
the claims or defenses at issue, in violation of Dragon I, 277 Kan. at 780-81.
The text of the district court order does not demonstrate that the district court
determined "the ultimate merits of Defendant's defenses," as Taranto alleges. The district
court findings instead go to whether the affirmative defenses served to bar class
certification, either by reducing the numerosity of the class or by creating highly
individualized issues regarding each plaintiff. Evidence from discovery suggested that
Taranto had not obtained widespread consent to send fax advertisements, that it had made
no effort to limit its fax transmissions to established customers, and that it would be
relatively easy to winnow out those plaintiffs with whom Taranto had an established
business relationship. In short, the district court did not require the plaintiffs to prove
their relationships with Taranto at the time of certification; the opportunity to present
such proof will still be available to Taranto if the case proceeds to trial. If additional
evidence demonstrates that class certification is inappropriate because of the affirmative
defenses, the district court will have the discretion to decertify the class.
The Adequacy of the District Court's Analysis of the Parties' Pleadings and the Statutory
Requirements for Class Certification
Taranto asserts that at least five errors in the class certification order demonstrate
that the district court failed to consider adequately the arguments and the factual record.
These errors include a purported misstatement of Taranto's argument relating to the
K.S.A. 2010 Supp. 60-223(b)(3) superiority requirement; the failure to address certain
authority and an argument that the potential damages could be excessive; the absence of
any comprehensive, all-inclusive fax number list; a reference to a special master when
none was involved with the case; and the adoption by the trial court of written findings
submitted by the plaintiff.
In general, this court will not reverse on mere technical errors. Appellate courts
disregard all mere technical errors and irregularities that have not prejudicially affected
the substantial rights of the complaining party when the record shows that substantial
justice was done by the order of the trial court. See Ward, 292 Kan. 541, Syl. ¶ 6 (if there
is no reasonable probability that error did or will affect outcome of trial in light of entire
record, error is harmless). The appellate courts are to render judgment "'without regard to
technical errors and irregularities in the proceedings of the trial court.'" State v. Denney,
258 Kan. 437, 444, 905 P.2d 657 (1995) (quoting K.S.A. 60-2105). We are also
disinclined to inquire into the mental processes of a factfinder, so long as the conclusions
are legally sustainable. See Kelly v. Kansas City, Kansas Community College, 231 Kan.
751, 757, 648 P.2d 225 (1982) (citing United States v. Morgan, 313 U.S. 409, 422, 61 S.
Ct. 999, 85 L. Ed. 1429 ).
A district court is under no requirement to address explicitly every legal authority
raised by a party, especially out-of-jurisdiction authority that is not binding on Kansas
courts. In addition, our appellate courts have upheld the practice of adopting proposed
findings submitted by a party and have ruled that such adoption does not constitute
inherent error. See Stone v. City of Kiowa, 263 Kan. 502, 506, 950 P.2d 1305 (1997);
Ortiz v. Biscanin, 34 Kan. App. 2d 445, 455, 122 P.3d 365 (2004).
The errors asserted by Taranto are technical in nature and do not undermine the
district court's determination that class certification is appropriate in this case.
The decision of the district court is affirmed, and we remand with instructions to
modify the class definition to clarify the parties consistent with the foregoing discussion.