The U.S. District Court for the Eastern District of Pennsylvania recently denied a plaintiff’s motion to certify a 25,000-member class in a TCPA fax action. See Fischbein v. IQVIA, Inc., No. 19-5365 (E.D. Pa. June 5, 2025).
Plaintiff alleged that IQVIA, a research organization that collects health data, faxed advertisements to over 25,000 health care providers without prior express permission. While analyzing whether members of the proposed class would be ascertainable, the court addressed — for the first time in the Third Circuit — the question of “whether the TCPA’s protection is limited to faxes received on stand-alone fax machines or extends to faxes received by way of online fax services.” The court sided with other circuit courts that have addressed this issue, concluding that “the plain language of the TCPA protects only those who receive unsolicited advertisements on a stand-alone fax machine” — not through an online fax service. (Note that this issue was also addressed in a recent Colorado decision.)
The court’s finding gave rise to an ascertainability problem: if a proposed class can only include those that received faxes via a stand-alone fax machine, how can a would-be class representative identify such recipients? In other words, how can a plaintiff tell — solely by reference to objective criteria — who received a given fax on a standalone machine as opposed to an online fax service? The court determined that plaintiff had not shown any feasible administrative method to do that. For this reason, the court found that no class could be certified.
Further, the court addressed the question of predominance and held that the issue of whether putative class members received faxes via an online fax service or a stand-alone fax machine was an individualized issue that would predominate over other common questions. As a result, the court denied certification on this separate ground as well.
The Fischbein decision is notable for at least two reasons. First, the court addressed an issue of first impression in the Third Circuit and sided with multiple other circuits that have concluded an online fax service falls outside the protections of the TCPA. Second, the ruling serves as a helpful reminder that — especially in the circuits that have set a high bar for ascertainability — defendants should explore every avenue for arguing that individual class members with statutory standing cannot be identified by reference to objective criteria.
