In Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., — A.3d —-, 2011 WL 2793214 (N.J.Super.A.D. 2011), the New Jersey Court of Appeal affirmed denial of a TCPA class action in a junk fax case, after surveying the dozens state and federal decisions on TCPA class certification. The Court of Appeal explained:

While no New Jersey case has been reported on the issue, the issue of TCPA class actions has been the subject of reported decisions in other jurisdictions. A survey of these cases reveals a lack of uniformity as to approach and result. Seven states have reported decisions allowing class certification for TCPA claims: Arizona, California, Florida, Indiana, Missouri, North Carolina FN4 and Oklahoma. See ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 50 P.3d 844 (Ariz.Ct.App.2002) (reversing trial court’s conclusion that lack of other TCPA claims weighed against class action’s superiority), review denied, No. CV–02–0285–PR (Ariz. Jan. 8, 2003); Kaufman v. ACS Sys., Inc., 2 Cal.Rptr.3d 296, 328 (Cal.Ct.App.2003) (agreeing with the trial court that a TCPA class action suit was proper, but noting the division of the courts on the issue, and restraining certification to a “case-by-case basis”), review denied, No. S118705 (Cal. Oct. 15, 2003); Hypertouch, Inc. v. Superior Court, 27 Cal.Rptr.3d 839 (Cal.Ct .App.2005) (vacating class certification which required members to “opt-in,” shifting burden of identification and notification of class members to sender); Guy’s World, Inc. v. Condon, 1 So.3d 240, 241 (Fla.Dist.Ct.App.2008) (affirming certification due to the limited record, but noting that “[t]he legal question of whether the TCPA bars class actions calls for an answer”); Core Funding Group, LLC v. Young, 792 N.E.2d 547, 552 (Ind.Ct.App.) (finding ex parte certification appropriate because plaintiff “alleged common questions of law and fact that predominated over any questions affecting individual class members” and “[t]he trial court’s analysis of the class certification question was as thorough as it could be without [defendant]’s participation”), transfer denied, 804 N.E.2d 759 (Ind.2003); Karen S. Little, LLC v. Drury Inns, Inc., 306 S.W.3d 577, 584 (Mo.Ct.App.2010) (holding that class certification was appropriate because “there was a simple set of facts common to all class members applying the same legal theory under a uniform federal law”); Blitz v. Agean, Inc., 677 S.E.2d 1, 10 (N.C.Ct.App.2009) (noting that certification was appropriate, in part, because “[s]mall claims court cannot, per se, be a superior venue in this State for violations of the TCPA, because it does not possess the authority to grant injunctions”), cert. denied, 690 S.E.2d 530 (N.C.2010); Lampkin v. GGH, Inc., 146 P.3d 847, 855 (Okla.Civ.App.2006) (finding that class action was superior because the “action involves so many relatively small claims that if the class members pursued their claims individually, it would unduly and unnecessarily clog the judicial system” of Oklahoma). Five states have denied certification: Colorado, Connecticut, New York, Ohio and Texas. See Livingston v. U.S. Bank, N.A., 58 P.3d 1088, 1091 (Colo.App.) (“[B]ecause individual issues predominated over common issues, the court did not err in denying class certification.”), cert. denied, No. 02SC417 (Colo. Dec. 16, 2002); Weber v. U.S. Sterling Sec., Inc., 924 A.2d 816, 827 (Conn.2007) (noting that under New York law a “plaintiff may bring a class action only if the statute on which the action is based specifically authorizes the action to be brought as a class action,” which the TCPA does not); J.A. Weitzman, Inc. v. Lerner, Cumbo & Assocs., Inc., 847 N.Y.S.2d 679, 680 (N.Y.App.Div.2007) (noting that “[a] class action to recover a penalty, or minimum measure of recovery pursuant to the Telephone Consumer Protection Act cannot be maintained in light of” applicable state law requiring statutory authorization for class action suits); Intercontinental Hotels Corp. v. Girards, 217 S .W.3d 736, 738 (Tex.App.2007) (denying certification because “the individual issues [including consent], not the common ones, will predominate in this case”).  Federal courts have addressed the issue, and are also split. See Gene & Gene, LLC v. Biopay, LLC, 624 F.3d 698 (5th Cir.2010) (reversing the recertification of the class after an interlocutory appeal determined that consent could not be established by class-wide proof and certification was not appropriate); CE Design Ltd. v. King Architectural Metals, Inc., 271 F.R.D. 595 (N.D.Ill.2010) (noting that class action was superior because consent was not established, but was later remanded by the 7th Circuit to determine whether consent made named plaintiff improper class representative), vacated and remanded, 637 F.3d 721 (7th Cir.2011); Kavu, Inc. v. Omnipak Corp., 246 F.R.D. 642, 650 (W.D.Wash.2007) (certifying under the TCPA a narrower class than requested and stating that the class size was “a direct result of defendant’s large number of violations, for which it should not be rewarded”); Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1169 (S.D.Ind.1997) (denying certification “[b]ecause [plaintiff]’s class definition would require the court to conduct individual inquiries with regard to each potential class member in order to determine whether each potential class member had invited or given permission for transmission of the challenged fax advertisements”); Forman, supra, 164 F.R.D. at 405 (denying certification because a class action “would not avoid duplicative lawsuits with potentially inconsistent results where, as here, liability is determined by facts that are individual as to each plaintiff” and “would be inconsistent with the specific and personal remedy provided by Congress to address the minor nuisance of unsolicited facsimile advertisements”). In addition, both Georgia and Louisiana have decisions from different courts within the jurisdiction reaching different results. Compare Carnett’s, Inc. v. Hammond, 279 Ga. 125 (2005) (recognizing that a class action may be an appropriate mechanism for pursuing claims but denying certification), with Am. Home Servs. Inc. v. A Fast Sign Co., 651 S.E.2d 119, 120 (Ga.Ct.App.2007) (affirming certification because “the proposed class explicitly excluded all parties” with whom plaintiff had “an established business relationship”); compare Display South, Inc. v. Graphic House Sports Promotions, Inc., 992 So.2d 510, 523 (La.Ct.App.) (affirming certification despite “[t]he fact that, following certification, some putative members of the class will eventually be found to have consented to the receipt” of the faxes), writ dismissed, 993 So.2d 1274 (La.2008), with Party Paradise v. Al Copeland Invs., Inc., 22 So.3d 1018, 1022, 1024 (La.Ct.App.2009) (denying certification because class defined as “any recipients of any faxed advertisements” did not “establish the actual identity of the putative class” as required). While we have doubts as to whether plaintiff could meet the commonality and typicality requirements of Rule 4:32–1(a), we conclude that it cannot meet “the more demanding criteria” of predominance and superiority. Wal–Mart Stores, Inc. v. Dukes, 564 U.S. ––––, ––– S.Ct. ––––, ––– L. Ed.2d –––– (June 20, 2011), slip op. at 8 (Ginsburg, J., dissenting). We conclude that a class action suit is not a superior means of adjudicating a TCPA suit. Class actions are generally appropriate where individual plaintiffs have “small claims” which “are, in isolation, too small … to warrant recourse to litigation….” Iliadis, supra, 191 N.J. at 104 (internal quotation marks omitted). In such instances, “the class-action device equalizes the claimants’ ability to zealously advocate their positions.” Ibid. That equalization principle remedies the incentive problem facing litigants who seek only a small recovery. “In short, the class action’s equalization function opens the courthouse doors for those who cannot enter alone .” Ibid. Here, by imposing a statutory award of $500, a sum considerably in excess of any real or sustained damages, Congress has presented an aggrieved party with an incentive to act in his or her own interest without the necessity of class action relief. As the motion judge observed, “the nature of the harm … as near as I can tell, is about two cents worth of paper and maybe a little ink and toner.” The judge also noted that in New Jersey, “pro se individuals and consumers [are] allowed to file a small claims complaint, [and] they do not need a lawyer. They are quickly before a Judge. I believe at the present time the standard is 30 to 45 days. An answer doesn’t even have to be filed.” The combination of the TCPA’s design and New Jersey’s procedures suggests that the benefit of a class action has been conferred on a litigant by the very nature of the procedures employed and relief obtained. The cost of litigating for an individual is significantly less than the potential recovery. Ultimately, we note that the same facts required to prevail on an individual TCPA claim—an unsolicited fax was received from a sender with whom the recipient had no prior business relationship—are identical to the facts that would have to be proven to merely identify a single class member. See Kenro, supra, 962 F.Supp. at 1169. We discern no superiority in such a situation. In sum, the class action cannot meet the superiority test and is inappropriate here.