[Cite as Miller v. Painters Supply & Equip. Co., 2011-Ohio-3976.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 95614

MICHAEL MILLER, ET AL.

PLAINTIFFS-APPELLANTS

vs.

PAINTERS SUPPLY & EQUIPMENT CO.

DEFENDANT-APPELLEE

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-712486 

BEFORE: S. Gallagher, J., Kilbane, A.J., and Jones, J. 

RELEASED AND JOURNALIZED: August 11, 2011 
ATTORNEYS FOR APPELLANTS 

Joseph R. Compoli 

James R. Goodluck 

612 East 185th Street 

Cleveland, OH 44119 

ATTORNEY FOR APPELLEE

Forrest A. Norman, III 

George H. Carr 

Gallagher Sharp 

1501 Euclid Avenue 

Bulkley Building, 6th Floor 

Cleveland, OH 44115 

Amicus Curie 

Mike DeWine 

Ohio Attorney General 

BY: Erin B. Leahy 

Assistant Attorney General 

Consumer Protection Section 

30 East Broad Street, 14th Floor 

Columbus, OH 43215 

BY: Michael R. Sliwinski 

Assistant Attorney General 

Consumer Protection Section 

615 W. Superior Avenue, 11th Floor 

Cleveland, OH 44113 
SEAN C. GALLAGHER, J.: 

{¶ 1} Plaintiffs-appellants Michael Miller and The Box Office (collectively 

“plaintiffs”) appeal the decision of the Cuyahoga County Court of Common Pleas that 

denied their motion for class certification.1

 For the reasons stated herein, we affirm the 

decision of the trial court. 

{¶ 2} In December 2009, plaintiffs filed a class action complaint against 

defendant-appellee Painters Supply & Equipment Company (“Painters Supply”), raising 

claims under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The 

complaint alleges that in January and February 2008, Painters Supply sent plaintiffs 12 

unsolicited advertisements via facsimile machine without obtaining prior express 

invitation or permission. 

{¶ 3} The trial court issued an order limiting discovery to class certification issues 

only. Thereafter, the court denied as premature plaintiffs’ motion for summary judgment 

on Painters Supply’s affirmative defense of “prior business relationship.” 

{¶ 4} During discovery, the court ordered Painters Supply to produce its list of 

fax recipients with the fax numbers and names of the fax recipients redacted “to protect 

defendant’s business interests[.]” Plaintiffs filed a “motion to vacate secrecy order” and 

requested an unredacted copy of the fax list. The trial court denied the motion as moot 

 1

 An amicus curie brief was filed by the Ohio Attorney General in support of 

plaintiffs-appellants. 
because no “secrecy order” had been entered by the court. A motion to reconsider and 

vacate protective order was later filed, with no express ruling made. 

{¶ 5} In the meantime, plaintiffs filed a motion for class certification, which was 

opposed by Painters Supply. The trial court held a hearing on the motion. 

{¶ 6} At the hearing, plaintiffs’ counsel represented that The Box Office is a 

small business that sells boxes and packaging materials and is owned by Michael Miller. 

Plaintiffs allegedly received faxes containing promotional advertising sent from Painters 

Supply. They asserted their proposed class was premised on the fact that the faxes were 

sent without an opt-out notice required by the TCPA. As such, they sought to certify a 

class of everyone to whom Painters Supply sent the fax advertisements in 2008 in which 

the faxes did not contain an opt-out notice. They asserted the class would have at least 

37 members based on the defendant’s fax list and the AT&T phone records. They 

further claimed that all of the prerequisites for class certification were met. However, 

they did not provide any method for determining on a classwide basis whether the faxes 

sent to other members of the proposed class were unsolicited. 

{¶ 7} Defense counsel argued that plaintiffs did not offer any evidence to show 

that any other member of the proposed class was sent an unsolicited advertisement. 

Painters Supply presented evidence reflecting that the fax advertisements were sent to its 

customers. The faxes sent to plaintiffs were intended for a customer whose number was 

apparently reassigned to plaintiffs. It was conceded that almost all of the promotional 

faxes that were sent by Painters Supply were intended for auto body companies. Thus, 
the defense argued that there had been no showing that the faxes sent to the purported 

class were “unsolicited advertisements” governed by the TCPA. As asserted by Painters 

Supply, plaintiffs had only shown that one person who was not an intended recipient was 

sent an unsolicited advertisement. 

{¶ 8} Following the hearing, the trial court denied the motion for class 

certification. The court recognized that plaintiffs’ proposed definition of the class was 

premised on the belief that all faxed advertisements contain an opt-out notice; however, 

the TCPA applies only to unsolicited fax advertisements. Thus, the court modified the 

class definition to pertain only to unsolicited faxes. More important, the trial court 

recognized that this case would require a detailed analysis of each proposed class 

member’s conduct to ascertain which members were sent unsolicited fax advertisements 

from Painters Supply. Because plaintiffs offered no method to differentiate between 

solicited and unsolicited faxes, the court recognized that the actual number of class 

members could be as few as one. The court found that the class was not readily 

identifiable and that the predominance and numerosity requirements had not been 

satisfied. 

{¶ 9} Plaintiffs timely filed this appeal. They raise two assignments of error for 

our review. Their first assignment of error provides as follows: “The trial court erred in 

denying plaintiffs-appellants’ motion for class certification.” 

{¶ 10} We emphasize that a trial judge has broad discretion in deciding whether to 

certify a class action, and that determination will not be disturbed absent an abuse of 
discretion. In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, 

780 N.E.2d 556, ¶ 5. Insofar as the trial court’s decision involves statutory 

interpretation, our review of issues of law is de novo. Searles v. Germain Ford of 

Columbus, L.L.C., 174 Ohio App.3d 555, 2007-Ohio-7140, 883 N.E.2d 480, ¶ 8. 

{¶ 11} “[T]he trial court’s discretion in deciding whether to certify a class action is 

not unlimited, and indeed is bounded by and must be exercised within the framework of 

Civ.R. 23. The trial court is required to carefully apply the class action requirements and 

conduct a rigorous analysis into whether the prerequisites of Civ.R. 23 have been 

satisfied.” Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70, 1998-Ohio-365, 694 

N.E.2d 442. 

{¶ 12} There are seven prerequisites that must be met before a court may certify a 

case as a class action pursuant to Civ.R. 23, which are as follows: “(1) an identifiable 

class must exist and the definition of the class must be unambiguous; (2) the named 

representatives must be members of the class; (3) the class must be so numerous that 

joinder of all members is impracticable; (4) there must be questions of law or fact 

common to the class; (5) the claims or defenses of the representative parties must be 

typical of the claims or defenses of the class; (6) the representative parties must fairly and 

adequately protect the interests of the class; and (7) one of the three Civ.R. 23(B) 

requirements must be met.” (Internal citations omitted.) Hamilton, 82 Ohio St.3d at 71. 

 The party seeking class certification has the burden of showing that class certification is 

appropriate. State ex rel. Ogan v. Teater (1978), 54 Ohio St.2d 235, 247, 375 N.E.2d 
1233. It must be shown, by a preponderance of the evidence, that all the Rule 23 

requirements are met. See Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 94, 521 

N.E.2d 1091. 

{¶ 13} Civ.R. 23 requires that an identifiable class must exist and the definition of 

the class must be unambiguous. This requirement “will not be deemed satisfied unless 

the description of [the class] is sufficiently definite so that it is administratively feasible 

for the court to determine whether a particular individual is a member. Thus, the class 

definition must be precise enough to permit identification within a reasonable effort.” 

(Internal quotations and citations omitted.) Hamilton, 82 Ohio St.3d at 71-72. Where 

possible, a class should be defined by reference to the defendant’s conduct. Id. at 73. 

{¶ 14} Plaintiffs sought to certify a class defined as follows: “All persons and 

entities, within the State of Ohio, to whom a facsimile (‘fax’) was sent, by or on behalf of 

the Defendant Painters Supply & Equipment Co., anytime during January and February 

2008, which contained an advertisement that did not include a notice informing the 

recipient of the right to opt out of future fax advertisement.” The proposed definition 

does not distinguish between solicited and unsolicited fax advertisements. 

{¶ 15} The trial court found that the class definition proposed by plaintiffs was 

overbroad because it potentially includes conduct outside the scope of the TCPA, which 

applies only to “unsolicited advertisements.” The court modified the class definition by 

inserting the word “unsolicited” before facsimile, so as to encompass only those to whom 
“unsolicited” fax advertisements were sent. We find no abuse of discretion by the trial 

court in making this modification. 

{¶ 16} The TCPA prohibits the use of “any telephone facsimile machine, 

computer, or other device to send, to a telephone facsimile machine, an unsolicited

advertisement,” unless certain statutory exceptions apply. (Emphasis added.) 47 U.S.C. 

§ 227(b)(1)(C). A recipient of an unsolicited fax advertisement has a private right of 

action and may recover actual damages or $500 for each violation, whichever is greater. 

47 U.S.C. § 227(b)(3)(B). 

{¶ 17} The term “unsolicited advertisement” is defined as one “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 an exception for 

unsolicited advertisements sent on the basis of an “established business relationship.” 47 

U.S.C. § 227(b)(1)(C). However, this exception requires that an unsolicited 

advertisement contain a “clear and conspicuous” notice informing the recipient of the 

right to opt out of future unsolicited advertisements. 47 U.S.C. § 227(b)(1)(C)(iii) and 

(b)(2)(D). Further, federal regulations implementing the TCPA contain restrictions on 

the transmission of unsolicited fax advertisements. One requirement under the provision 

pertaining to unsolicited fax advertisements is for the inclusion of an opt-out notice, 

providing as follows: “[a] facsimile advertisement that is sent to a recipient that has 

provided prior express invitation or permission to the sender must include an opt-out 

notice[.]” 47 C.F.R. § 64.1200(a)(3)(iv). 
{¶ 18} Plaintiffs argue that the TCPA prohibits the transmission of any fax 

advertisement that fails to include the “opt out” notice required by the TCPA and federal 

regulation. See 47 U.S.C. § 227(b)(1)(C) and (b)(2)(D); 47 C.F.R. § 64.1200(a)(3). As 

such, plaintiffs claim they proposed a viable class based on Painters Supply’s alleged 

violation of the TCPA by the transmission of fax advertisements that failed to contain an 

“opt out” notice. We are not persuaded by this argument. 

{¶ 19} “The TCPA prohibits only ‘unsolicited’ advertisements.” Cicero v. U.S. 

Four, Inc., Franklin App. No. 07AP-310, 2007-Ohio-6600, ¶ 42. Likewise, “the [federal 

regulation] in question, 47 C.F.R. § 64.1200(a)(3)(iv), purports, on its face, to apply only 

to unsolicited faxes.” Nack v. Walburg (Jan. 28, 2011), E.D.Mo. No. 4:10CV00478 

AGF (rejecting assertion that all faxes, whether solicited or unsolicited, must contain 

opt-out language). Simply put, the above provisions, and the opt-out notice requirements 

thereunder, do not apply to fax transmissions unless they constitute unsolicited 

advertisements. 

{¶ 20} In Nack, the court recognized that the TCPA and the federal regulation only 

apply to fax communications that constitute unsolicited advertisements. Id. Thus, the 

court found where the recipient gave permission to send the fax that gives rise to the 

claimed violation, the fax is not unsolicited and an opt-out notice is not required. Id. As 

in Nack, our concern is with the unsolicited nature of the fax that is required to invoke the 

TCPA. 
{¶ 21} In this case, plaintiffs seek to put the proverbial cart before the horse. 

They seek to certify a class on the basis of the failure of the fax advertisements to contain 

an opt-out notice. However, the opt-out notice requirements do not come into play 

unless it is first shown that unsolicited fax advertisements were sent. As the trial court 

recognized, deciding whether “unsolicited” advertisements were sent would require 

individual, fact intensive inquiries that would make class certification impractical. 

{¶ 22} We recognize the Ohio Attorney General’s concern for a uniform 

construction of the TCPA and the interest in allowing parties to pursue a TCPA lawsuit as 

a class action. However, we cannot say that every TCPA claim is necessarily suitable for 

class certification. Even the Attorney General acknowledges that the TCPA “prohibits 

the transmission of any ‘unsolicited advertisement.’” While in some cases the unsolicited 

nature of the fax advertisement may not be in dispute or may be shown by generalized 

proof, in others, the determination may require individualized inquiry. The concern is 

with whether the requirements for class certification have been met. 

{¶ 23} Under the circumstances of this case, which involved sending fax 

advertisements to numbers in an existing customer base, the trial court found it would be 

required to review the conduct of each prospective class member to identify those with 

cognizable claims. The trial court did not disregard the opt-out notice requirement, but 

rather, recognized a threshold condition for plaintiffs’ TCPA claim, i.e., an unsolicited 

advertisement. As the trial court found, “the proposed class definition is overly broad 

because it potentially includes conduct outside the scope of the TCPA.” 
{¶ 24} “Where a class is overbroad and could include a substantial number of 

people who have no claim under the theory advanced by the named plaintiff, the class is 

not sufficiently definite.” Vigus v. S. Illinois Riverboat/Casino Cruises, Inc. (Mar. 11, 

2011), S.D.Ill. No. 08-cv-786-JPG. Likewise, a class may be overbroad when the 

proposed class extends beyond the scope of the statute upon which the claims are based. 

Cf. Gottlieb v. S. Euclid, 157 Ohio App.3d 250, 2004-Ohio-2705, 810 N.E.2d 970. In 

this case, the proposed class extended beyond a cognizable class of individuals under the 

TCPA. Plaintiffs’ alternative class definition suffered from the same flaw. Under the 

circumstances herein, we find that it was within the trial court’s discretion to modify the 

class definition to comport with the scope of the TCPA. 

{¶ 25} We recognize that the term “unsolicited” is not necessarily required in 

defining a class in all TCPA cases. Rather, when the unsolicited nature of the fax cannot 

be shown by generalized proof, we can find no abuse of discretion by the trial court in 

limiting the class to those with a cognizable or “identifiable” claim. 

{¶ 26} We further find no merit to plaintiffs’ contention that the revised definition 

was improper because it effectively required the trial court to consider the merits of the 

claim at the class certification stage. The trial court recognized that only unsolicited fax 

advertisements are actionable under the TCPA and appropriately considered whether the 

requirements for class certification were met within the proper framework of the TCPA. 

Defining the class in this way does not require a determination on the merits of the 

underlying claim. 
{¶ 27} The trial court determined that in order to ascertain members of the class, 

the court would be required to review the conduct of each plaintiff prior to receipt of the 

fax. The court recognized that this is not a case where mass faxes were transmitted to 

numbers gleaned from directories. Rather, the evidence presented at the hearing 

reflected that the fax recipients were either “1) existing customers of [Painters Supply] 

who expressly solicited announcements of sales and special offers; or 2) existing 

customers who expressly consented to receiving advertisements.” Since individualized 

determinations would be required to identify those who were sent an unsolicited fax, the 

court found the class, even as amended by the court, was not readily identifiable. 

{¶ 28} Indeed, this is not a case where mass faxes were sent to numbers from a 

directory, where it may be possible to establish the unsolicited nature of the 

advertisements with generalized proof focused on the defendant’s conduct. Instead, this 

is a case where faxes were sent to an existing customer base and requires a review of each 

individual class member’s conduct. Plaintiffs offered no administratively feasible 

method of determining a cognizable class. Thus, the class definition, even as amended to 

comport with the TCPA, was not precise enough to permit identification within a 

reasonable effort. We find no abuse of discretion with the trial court’s determination. 

See Vigus, supra; Boehm, Kurtz & Lowry v. Interstate Ins. Servs. Agency, Inc., Hamilton 

App. No. C-100033, 2010-Ohio-5432; Cicero, 2007-Ohio-6600. 

{¶ 29} The trial court also found the predominance and numerosity requirements 

were not met. With regard to predominance, Civ.R. 23(B)(3) is satisfied if “the court 
finds that questions of law or fact common to the members of the class predominate over 

any questions affecting only individual members, and that a class action is superior to 

other available methods for the fair and efficient adjudication of the controversy.” “‘[A] 

claim will meet the predominance requirement when there exists generalized evidence 

which proves or disproves an element on a simultaneous, class-wide basis, since such 

proof obviates the need to examine each class member's individual position.’” Cope v. 

Metro. Life Ins. Co. (1998), 82 Ohio St.3d 426, 429-430, 696 N.E.2d 1001, quoting 

Lockwood Motors, Inc. v. Gen. Motors Corp. (D.Minn.1995), 162 F.R.D. 569, 580. 

{¶ 30} The trial court concluded that “this action requires a detailed examination of 

each plaintiff’s conduct, both as to claims and defenses raised by the parties. As 

discussed previously, the TCPA applies only to unsolicited faxes * * *. Class 

certification, therefore, would require substantial discovery and proceedings for each 

class member to determine if the class member has a cognizable claim.” 

{¶ 31} Plaintiffs failed to offer any evidence that would establish on a classwide 

basis that Painters Supply’s customers were sent unsolicited fax advertisements. Even if 

we were to accept the class as broadly defined, there is no generalized evidence to 

establish the purported class members have cognizable claims under the TCPA. The 

central issue in this case is one of individual consent, and the trial court would be required 

to examine each class member’s conduct to determine whether each fax transmission was 

unsolicited and resulted in a violation of the TCPA. It is apparent that individual issues 

would predominate the case and that class certification is not the superior method to fairly 
and efficiently adjudicate the controversy. Other courts have found predominance 

lacking where such detailed, individual-specific determinations are required to determine 

whether a defendant violated the TCPA. See, e.g., Vigus, supra at *7-8; G.M. Sign, Inc. 

v. Brinks Mfg. Co. (Jan. 25, 2011), N.D. Ill. No. 09 C 5528, *7; Boehm, Kurtz & Lowry, 

2010-Ohio-5432, at ¶ 21-22; Cicero, 2007-Ohio-6600, at ¶ 42-44. Upon our review, we 

find no abuse of discretion by the trial court. 

{¶ 32} For the numerosity requirement to be met, the class must be so numerous 

that joinder of all members is impracticable. Civ.R. 23; Warner, 36 Ohio St.3d at 97. 

The numerosity requirement must be determined on a case-by-case basis. Warner, 36 

Ohio St.3d at 97. Where a proposed class has between 25 and 40 people in it, there is no 

automatic rule to establish numerosity. Id. 

{¶ 33} The trial court recognized plaintiffs’ contention “that the proposed class 

includes at least 37 persons and/or entities.” However, the court found the actual number 

could be less because the TCPA only applies to unsolicited fax advertisements. In 

moving for class certification, plaintiffs presented no evidence that “unsolicited” faxes 

were sent to any other members of the proposed class. While 37 persons may be a 

sufficient number to establish a class, in this case, the trial court appropriately recognized 

that upon individual examination of the facts unique to each plaintiff, the actual number 

of class members could be as few as one. 
{¶ 34} From the record before us, it is apparent that plaintiffs failed to demonstrate 

that the proposed class was so numerous as to make joinder impracticable, and we find no 

abuse of discretion in the trial court’s determination. 

{¶ 35} The trial court did find that the commonality, typicality, and adequacy 

requirements were met. These findings have not been challenged on appeal, and we 

need not address them herein. 

{¶ 36} Plaintiffs also contend that the trial court failed to “assume the truth of the 

allegations in the complaint” in considering class certification. It is true that “[w]hen a 

trial court considers a motion to certify a class, it must assume the truth of the allegations 

in the complaint, without considering the merits of those allegations and claims.” Nagel 

v. Huntington Natl. Bank, 179 Ohio App.3d 126, 2008-Ohio-5741, 900 N.E.2d 1060, ¶ 

10. However, a court need not accept as true unsupported legal conclusions in the 

complaint. Pearson v. Warrensville Hts. City Schools, Cuyahoga App. No. 88527, 

2008-Ohio-1102, ¶ 35; see, also, Spriggs v. Cleveland (June 6, 1985), Cuyahoga App. No. 

49163. It remained plaintiffs’ burden to demonstrate that all factual and legal 

prerequisites to class certification had been met. Gannon v. Cleveland (1984), 13 Ohio 

App.3d 334, 335, 469 N.E.2d 1045. From the record before us, we find the trial court 

could readily find that the prerequisites of an identifiable class, predominance, and 

numerosity had not been met. 

{¶ 37} We conclude that the trial court did not abuse its discretion in denying 

plaintiffs’ motion for class certification. We reiterate the policy behind a class action 
lawsuit is “to simplify the resolution of complex litigation, not complicate it.” Warner, 

36 Ohio St.3d at 97. Plaintiffs’ first assignment of error is overruled. 

{¶ 38} Plaintiffs’ second assignment of error provides as follows: “The trial court 

erred in denying [plaintiffs’] motions to vacate discovery orders.” 

{¶ 39} A trial court has broad discretion in the regulation of discovery. Whitt v. 

ERB Lumber, 156 Ohio App.3d 518, 2004-Ohio-1302, 806 N.E.2d 1034, ¶ 28. Absent 

an abuse of discretion, a reviewing court must affirm a trial court’s disposition of 

discovery issues. State ex rel. The V. Cos. v. Marshall, 81 Ohio St.3d 467, 469, 

1998-Ohio-329, 692 N.E.2d 198. Further, “[a] decision which, in effect, bars the 

requesting party from pursuing discovery cannot be reversed by an appellate court absent 

a showing of substantial prejudice to that party.” Shaver v. Standard Oil Co. (1990), 68 

Ohio App.3d 783, 800, 589 N.E.2d 1348; see, also, Civ.R. 61. 

{¶ 40} In this case, the trial court limited initial discovery to class certification 

issues. Following an in camera inspection, the trial court ordered Painters Supply to 

produce its list of fax recipients with the fax numbers and names of the fax recipients 

redacted “to protect defendant’s business interests[.]” Plaintiffs argue that the trial court 

erred by denying plaintiffs’ requests to obtain an unredacted fax transmission list. 

Insofar as plaintiffs assert the requested discovery was necessary to its class certification 

claim, we shall address this issue. See State ex rel. Shelton v. Firemen & Policemen’s 

Death Benefit Fund (1997), 125 Ohio App.3d 559, 566, 709 N.E.2d 182, fn.1 
(recognizing discovery orders that are an adjunct to the denial of class certification are 

reviewed as a final appealable order). 

{¶ 41} We recognize that it is not unusual for a trial court to limit discovery with 

respect to class certification issues. Plaintiffs were provided with the fax list, which 

disclosed the fax transmissions sent by Painters Supply during 2008 and included the 

putative class period. Even if we were to find that the disclosure of the identities of 

potential class members was warranted at the pre-certification stage, plaintiffs fail to 

show how this information was pertinent to establishing the class certification 

requirements. Further, it is evident from plaintiffs’ motion to vacate the secrecy order 

that plaintiffs subpoenaed telephone company records showing the calls made by Painters 

Supply during the period the faxes were sent. Plaintiffs were able to identify the names 

associated with these numbers through an Internet search. In the end, the trial court 

determined this action was not suitable for class certification because each individual 

class member’s conduct would have to be examined to determine whether each was the 

recipient of an unsolicited fax advertisement with a cognizable claim under the TCPA. 

Accordingly, we find the trial court acted within its discretion and no prejudice has been 

shown. We overrule plaintiffs’ second assignment of error. 

Judgment affirmed; case remanded. 

It is ordered that appellee recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

LARRY A. JONES, J., CONCURS; 

MARY EILEEN KILBANE, A.J., CONCURS IN PART AND DISSENTS IN 

PART WITH SEPARATE OPINION 

MARY EILEEN KILBANE, A.J., CONCURRING IN PART AND DISSENTING 

IN PART: 

{¶ 42} I concur with the majority’s conclusion overruling the second assignment of 

error. However, I respectfully dissent from the majority opinion on the first assignment 

of error. I would reverse the trial court’s judgment denying plaintiffs’ motion for class 

certification. 

{¶ 43} In the instant case, it is undisputed that Painters Supply’s faxed 

advertisements did not include an opt-out notice. The trial court ignored the fact that the 

omission of the opt-out provision precluded Painters Supply from asserting any defense 

based upon “established business relationships” or “prior express invitation or 

permission.” Instead, the court revised the original class definition proposed by 

plaintiffs to include the term “unsolicited.” This required the court to then consider the 
issue of “established business relationships” or “prior express invitation or permission” 

with respect to each individual class member. 

{¶ 44} While a fax must be “unsolicited” in order to recover under the TCPA, 

Civ.R. 23 does not require that a plaintiff’s class must be defined in terms of the statute 

allegedly violated. “To the contrary * * * defining a class in terms of the elements of a 

statute would be the ‘equivalent to deciding the merits of class members’ claims,’ and 

thus impermissible.” Sadowski v. Med1 Online, LLC (N.D.Ill. 2008), No. 07 C 2973, 

quoting, Foreman v. PRA III, LLC (N.D.Ill. 2007), No. 05 C 3372. During the class 

certification stage, the trial court must determine the propriety of the class certification, 

not the merits of the claim. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 

Ohio St.3d 230, 233, 466 N.E.2d 875. Indeed, a “[c]lass action certification does not go 

to the merits of the action.” Id. 
{¶ 45} By amending the original proposed definition, the trial court erroneously 

determined the merits of the issue of whether Painters Supply’s faxed advertisements 

were unsolicited. As the Ohio Attorney General stated in its amicus curiae appellate 

brief, the trial court’s ruling disregards “the explicit requirement of the TCPA that all 

faxed advertisements must include a clear and conspicuous notice informing the recipient 

of the right to opt out of future faxed advertisements. 47 U.S.C. § 227(b)(1)(C)(ii) and 

2(D). By failing to follow this specific requirement of the statute, the trial court 

effectively prevented the plaintiff, a small business owner, from successfully pursuing his 

TCPA lawsuit as a class action.” 

{¶ 46} Therefore, I would find that the trial court abused its discretion, and I would 

reverse the trial court’s judgment denying plaintiffs’ motion for class certification.