Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc.

In this putative class action under the Telephone Consumer Protection Act of 1991 (“TCPA”), the Sixth Circuit Court of Appeals ruled that (1) it was “bound” by a D.C. Circuit ruling that the FCC exceeded its authority in issuing a regulation requiring opt-out notice on facsimile advertisements sent with “prior express invitation or permission,” and (2) that the class could not be certified where Defendant’s records do not allow the parties to “identify” each class member with 100% accuracy. There are two questions presented:

1. Whether the decision of one circuit court of appeals becomes binding on all other circuits if the decision reviews the validity of an agency order under the Hobbs Act, 28 U.S.C. § 2342(1), as the Sixth Circuit held in this case and the Ninth Circuit held in Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir. 2008), or whether “there is no rule of intercircuit stare decisis,” and one circuit’s ruling in a Hobbs Act appeal is not binding outside that circuit, as the Seventh Circuit held in Brizendine v. Cotter & Co., 4 F.3d 457, 462 n.4 (7th Cir.), rev’d on other grounds, 511 U.S. 1103 (1994), and the First Circuit held in Bhd. of Locomotive Eng’rs v. Boston & Maine Corp., 788 F.2d 794, 802 (1st Cir. 1986).

2. Whether an ability to “identify” class members is a prerequisite to class certification—under the rubric of “ascertainability,” “predominance,” or