In Hazel’s Cup & Saucer, LLC v. Around The Globe Travel, Inc., — N.E.3d —-, 2014 WL 4106870 (Mass.App.Ct. 2014), the Massachusetts Court of Appeal reversed a trial court’s denial of class certification, when the trial court denied class cert because the potential massive exposure under the TCPA if the class was certified outweighed the harm caused.

This case presents an archetypical example of a case in which the class action mechanism is superior to that of individual litigation of each claim. Under the TCPA, each person sent an unsolicited fax is entitled to damages in the amount of $500. The cost of obtaining counsel to litigate each case—particularly given the need for discovery—would likely be greater than the expected value of each claim.  It was an error of law to conclude that providing redress for plaintiffs entitled to it by the TCPA would be “unfair” because of the cumulative cost to the defendant, and that therefore a class action was not superior to the individual litigation of the class members’ claims. Congress has made the judgment that statutory damages in this amount are necessary to compensate those injured by the receipt of unwanted fax advertisements, and to deter this unlawful conduct. A judge’s determination of superiority under Mass . R.Civ.P. 23(b) may not properly include his or her judgment about the wisdom or propriety of the substantive law under which the plaintiff seeks redress. Nor may the possibility that the class action mechanism may work successfully as it was intended to by the enacting Legislature in providing appropriate redress by aggregating small recoveries be treated as a factor supporting a conclusion that the class action mechanism would be inferior to individual litigation of those claims  We agree with the majority of courts to have discussed the issue under various cognate class action provisions and hold that the class action mechanism is a superior avenue for adjudication of claims under 47 U.S.C. § 227 on facts such as these.FN3  [FN3. Compare Kavu, Inc. v. Omnipak Corp., 246 F.R.D. 642 (W.D.Wash.2007); Reliable Money Order, Inc. v. McKnight Sales Co., 281 F.R.D. 327 (E.D.Wis.2012); Vandervort v. Balboa Capital Corp., 287 F.R.D. 554 (C.D.Ca.2012); Siding & Insulation Co. vs. Combined Ins. Group, Ltd., U.S. Dist. Ct. No. 1:11 CV 1062 (N.D.Ohio Apr. 24, 2012); Van Sweden Jewelers, Inc. vs. 101 VT, Inc., U.S. Dist. Ct., No. 1:10–CV–253 (W.D.Mich. Sept. 19, 2012); Sparkle Hill, Inc. vs. Interstate Mat Corp., U.S. Dist. Ct., No. 11–10271–RWZ (D.Mass. Dec. 18, 2012); St. Louis Heart Center, Inc. vs. Vein Centers for Excellence, Inc., U.S. Dist. Ct., No. 4:12 CV 174 CDP (E.D.Mo. Dec. 11, 2013); C–Mart, Inc. vs. Metropolitan Life Ins. Co., U.S. Dist. Ct., No. 13–80561 (S.D.Fla. Feb. 4, 2014); Michel vs. WM Healthcare Solutions, Inc., U.S. Dist. Ct., No. 1:10–CV–638 (S.D.Ohio Feb. 7, 2014); Arnold Chapman & Paldo Sign & Display Co. vs. Wagener Equities, Inc., U.S. Dist. Ct., No. 09 C 07299 (N.D.Ill. Feb. 11, 2014); Hawk Valley, Inc. vs . Taylor, U.S. Dist. Ct., No. 10–CV–00804 (E.D.Pa. Mar. 31, 2014); ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. 94 (2002); Critchfield Physical Therapy v. Taranto Group, Inc., 293 Kan. 285 (2011); Display S., Inc. v. Graphics House Sports Promotions, Inc., 992 So.2d 510 (La.Ct.App.2008); Karen S. Little, L.L.C. v. Drury Inns, Inc., 306 S.W.3d 577 (Mo.Ct.App.2010); Lampkin v. GGH, Inc., 146 P.3d 847 (Okla.Civ.App.2006); with Forman v. Data Transfer, Inc. 164 F.R.D. 400 (E.D.Pa.1995); Evans & Green, LLP vs . That’s Great News, LLC, U.S. Dist. Ct., No. 11–3340–CV–S–ODS (W.D.Mo. Oct. 15, 2012); Hammond v. Carnett’s, Inc., 266 Ga.App. 242 (Ga.Ct.App.2004); Local Baking Prod., Inc. v. Kosher Bagel Munch, Inc., 421 N.J.Super. 268 (App.Div.2011); Cicero v. U.S. Four, Inc., 2007–Ohio–6600 (Ct.App.2007); Sal’s Glass Co. vs. Duplicating Methods Co., Conn.Super. Ct., No. HHDCV106016006S (Mar. 11, 2013).] Regardless of the proper construction of the cognate Federal and State class action rules, we hold that the superiority prong of Mass .R.Civ.P. 23(b) was met in this case.