W.D. Washington Certifies Class under Rule 23(b)(2) and (b)(3)

Per Kavu Inc. v. Omnipak Corporation, --- F.R.D. ----, 2007 WL 201093 (W.D. Wash. Jan. 23, 2007):

Plaintiff seeks to represent a class of people who received the same facsimile. . . . For the reasons set forth below, the Court finds that class certification is warranted but narrows the proposed class. . . . [I]n this case, jurisdiction is alleged to exist based on CAFA, which was enacted after Murphey. . . . In this case, both the amount in controversy requirement and the minimal diversity requirements are met. . . . [T]his Court has subject matter jurisdiction over this matter based on CAFA. Removal was proper. . . .

A party seeking to certify a class must establish that the requirements of Federal Rule of Civil Procedure 23 are met. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). . . . Courts have described the showing required to meet the commonality requirement as "minimal" and "not high." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998); Mortimore v. F.D.I.C., 197 F.R.D. 432, 436 (W.D.Wash.2000). Defendant argues that the commonality requirement is not satisfied because a key, and individual, issue will be whether each class member gave permission to receive facsimiles from Omnipak. . . . Notably, whether the facsimile was "unsolicited" appears to be more of a common issue in this case than in the cases that denied class certification. . . . Other common issues include whether the facsimile's notice provision violated the TCPA, and if so, whether the violation was "immaterial" as Omnipak alleges. . . . Accordingly, the commonality requirement is met.

The typicality element requires that the claims or defenses of the proposed class representatives be typical of the claims or defenses of the class they seek to represent. . . . In this case, defendant does not dispute that plaintiff is part of the class it seeks to represent and suffered the same injury. Omnipak argues that Kavu's claims are factually different from the class because no representative of Kavu spoke with a representative of Manufacturers' News. The record, however, does not include any evidence from Manufacturers' News and does not support Omnipak's assertion that Manufacturers' News representatives spoke with recipients of the facsimile. Even if they had, the typicality element is still met because Kavu's claims arise from the same alleged course of conduct and are based on the same legal theories. . . . Defendant also argues that plaintiff fails to meet the typicality element because its claims are subject to unique defenses and dominated by individual issues. Although the presence of unique defenses can undermine the typicality element, Omnipak's defenses to plaintiff's claims are not unique. . . .

The adequacy element requires that (1) the named plaintiff must be able to prosecute the action vigorously through qualified counsel, and (2) the representative cannot have antagonistic or conflicting interests with the unnamed members of the class. See, e.g., Smith v. Univ. of Wash. Law Sch., 2 F.Supp.2d 1324, 1343 (W.D.Wash.1998). . . .

In addition to the Rule 23(a) prerequisites, plaintiff must also demonstrate that the class action is maintainable pursuant to Rule 23(b). . . . The "predominance" element requires the Court to consider whether "plaintiffs would have brought suit to obtain the injunctive relief they seek even if they could not obtain a money recovery." Beck, 203 F.R.D. at 466. Defendant argues that injunctive relief cannot be the primary goal because it is "unlikely" that Kavu would have brought this action without the monetary relief allowed under the statutes. . . . For all of these reasons, the Court finds that certification under Rule 23(b)(2) is appropriate because Omnipak has acted on grounds generally applicable to the class, and final injunctive or declaratory relief is appropriate for the class.

Plaintiff also contends that class certification is appropriate under Fed.R.Civ.P. 23(b)(3) . . . The purpose of this rule is to identify those actions in which certification of a class "would achieve economies of time, effort and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Fed.R.Civ.P. 23 advisory committee's note (1966). . . . Accordingly, common issues predominate and proceeding as a class action is a superior method of adjudicating the claims. Certification under Fed.R.Civ.P. 23(b)(3) is warranted.

The Court finds that plaintiff has met the class certification prerequisites of Fed.R.Civ.P. 23(a) and shown that the proposed class may be maintained pursuant to Fed.R.Civ.P. 23(b)(2) and 23(b)(3).