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Click here for the full text of this decision FACTS:In 2000, Intercontinental contracted with American Blast Fax, an agreement in which ABF agreed to send out faxes on behalf of Intercontinental. James E Girards testified that he received one fax from Intercontinental on Dec. 11 or Dec. 12, 2000. On April 27, 2001, James E. Girards and James E. Girards, individually and on behalf of all others similarly situated (collectively, Girards), filed an original class action petition seeking damages, because he and the members of the potential class received unsolicited faxes in violation of the Telephone Consumer Protection Act, 47 U.S.C. �227, and the Texas Fax Act, Texas Business & Commerce Code �35.47(f). Under the Texas Fax Act, a person who receives a communication that violates �227 may bring an action against the person who originates the communication. In its third amended class certification order, the trial court certified the class as: persons or entities billed by Southwestern Bell for a number at the time that number was confirmed to have received an Intercontinental fax according to the ABF daily fax confirmation logs. The class excludes entities that are resellers of phone lines, such as AT&T and MCI. Intercontinental appealed. In a single issue, Intercontinental argued that the trial court erred in certifying the underlying cause as a class action. HOLDING:Reversed and remanded. Based on the testimony of Valerie Lynn Thompson, an SBC employee, the court found that part of the potential class, the recipients of Intercontinental’s faxes in 2000, were not ascertainable. Thompson, the team lead in the enterprise data warehouse at SBC, testified that it was impossible to cross reference working telephone numbers with billing telephone numbers going back to 2000. Thus, the record shows that while Girards can identify numbers to which ABF sent faxes, along with billing numbers associated with those numbers, the records showing the relationship between billing numbers and working telephone numbers in 2000 was unavailable. As a result, the court stated it could not ascertain the recipients of Intercontinental’s faxes in 2000. Moreover, the court found that Greg Horne, co-owner of ABF, testified ABF had relationships with people all over the Dallas-Fort Worth metropolitan area, some of whom asked to be added to ABF’s database. Thus, court found that Intercontinental could raise the issue of consent as to each claimant. As a result, the court found that individual issues predominated over common issues in this case. Thus, the court held that the trial court abused its discretion in certifying the class in this case. OPINION:Bridges, J.; Thomas, C.J., and Moseley and Bridges, J.J.

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