John M. Kirby
Blitz v. Agean, Inc. | Class Action Lawsuits in North Carolina
In Blitz v. Agean, from June 4, 2013, the North Carolina Court of Appeals affirmed the lower court's decision to deny class certification.
In this case, the plaintiff alleged that the defendant (restaurant) sent him an unsolicited fax, in violation of the Telephone Consumer Protection Act. He sought damages under the Act, and also sought to have the matter certified as a class action, to bring claims on behalf of other persons receiving unsolicited faxes. The lower court denied certification, and the Court of Appeals affirmed.
The court noted that one requirement for a class action is "commonality and typicality." This means that the claims of the members of the class must be sufficiently similar, and that those issues predominate over other issues. "A common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class." The court primarily noted that under the Act, only a person receiving an "unsolicited" fax could sue. The court reasoned that each class member's claim would require proof of whether the fax was solicited, and thus that the denial of class certification was not error.