Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 1 of 25 PageID 86 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Transcription

1 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 1 of 25 PageID 86 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LICARI FAMILY CHIROPRACTIC INC., a Florida corporation, and PETER LICARI, individually and as the representative of a class of similarly-situated persons, v. Plaintiff, ECLINICALWORKS, LLC, ECLINICALDIRECT, LLC, ECLINICALWEB, LLC, and JOHN DOES 1-5, Defendants. Case No. 8:16-cv MSS-JSS PLAINTIFF S MOTION AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Plaintiffs, Licari Family Chiropractic Inc. ( Licari Chiropractic and Peter Licari ( Licari (collectively, Plaintiffs, individually and on behalf of all others similarly situated, hereby move the Court for class certification pursuant to Fed. R. Civ. P. 23(a and (b(3, and state the following in support: 1. This case arises out of a fax-advertising campaign wherein facsimile advertisements were sent to Plaintiffs and the proposed class in one broadcast conducted on February 4, Plaintiffs received a fax advertisement (the Fax on February 4, 2014, and brought this lawsuit alleging that the Fax violated the Telephone Consumer Protection Act of 1991 ( TCPA, 47 U.S.C The Fax advertised products sold by Defendants eclinical Works, LLC, eclinical Direct LLC, and eclinicalweb, LLC (collectively, eclinicalworks or Defendants. A total

2 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 2 of 25 PageID 87 of 27,209 error-free Fax advertisements were successfully sent to 18,300 unique fax numbers through retained fax broadcaster Slingshot Technologies Corporation ( Slingshot on behalf of Defendants. Precise Relief Requested 4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff seeks an Order from this Court certifying the following class: All persons who were sent one or more of the facsimile sent on or about February 4, 2014, from either eclinicalworks, LLC, eclinicaldirect LLC, or eclinicalweb, LLC, which contained an opt out notice the same or similar to the following: If you would like to opt out from fax communications please go to 5. Plaintiffs also seek an Order from the Court appointing Plaintiffs as class representatives and appointing the law firm of Anderson + Wanca as class counsel. Basis of the Relief Requested 6. As explained in Plaintiffs incorporated Memorandum of Law, Plaintiffs easily satisfy the requirements of Federal Rule of Civil Procedure 23(a, as well as all of the Rule 23(b(3 requirements, and the Class is ascertainable. Plaintiffs seek to certify a class of all those persons who were sent the same Fax in violation of the TCPA and its implementing regulations. It is undisputed the Fax was sent by fax broadcaster Slingshot on February 4, 2014, and that the Fax is an advertisement. Plaintiffs expert, Robert Biggerstaff, has examined electronic and other data produced by Defendants and by Slingshot, and has concluded the aforementioned Fax broadcasts resulted in 27,209 error-free transmissions that were received by 18,300 unique fax numbers. Furthermore, because the Fax has an opt-out notice that fails to comply with the regulations implementing the TCPA, the affirmative defenses of established business relationship ( EBR and/or prior express invitation or permission, should they be alleged, are unavailable. Finally, Plaintiffs submit that their counsel, the law firm of Anderson + Wanca, is 2

3 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 3 of 25 PageID 88 highly experienced in TCPA class-action litigation and should be appointed class counsel under Rule 23(g, and Plaintiffs should be appointed class representatives, as they have no conflicts and will actively and adequately prosecute this action. MEMORANDUM I. Introduction The Telephone Consumer Protection Act of 1991 ( TCPA or Act, 47 U.S.C. 227(b(1(C, forbids the use of any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless certain exceptions are met. The TCPA defines an unsolicited advertisement as any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person s prior express invitation or permission, in writing or otherwise. Id. 227(a(5. The TCPA creates a private right of action for any person or entity that receives an advertisement in violation of the Act and provides for statutory damages in the amount of $500 for each violation as well as injunctive relief against future violations. Id. 227(b(3(A (B. Additionally, the TCPA provides treble damages may be assessed if in the Court s discretion the defendant willfully or knowingly violated the act. Id. 227(b(3. The Federal Communications Commission ( FCC has authority to prescribe regulations to implement the TCPA. Id. 227(b(2; Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (2012 (the Act directs the FCC to prescribe implementing regulations. Under that authority, the FCC has issued regulations requiring specific opt-out language on fax advertisements in order to advise recipients of how to stop receiving such faxes. 47 C.F.R (a(4(iii. The FCC s regulations regarding opt-out language are clear fax advertisements sent pursuant to an 3

4 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 4 of 25 PageID 89 established business relationship ( EBR, or pursuant to prior express invitation or permission, must contain the proper opt-out language. Id (a(4(iii (iv. Defendants, 1 through retained fax broadcaster Slingshot, conducted a single fax broadcast on or about February 4, 2014, wherein Defendants successfully sent a total of 27,209 error-free fax advertisements to 18,300 unique fax numbers. It is undisputed the Fax is an advertisement under the TCPA; it is undisputed the Fax was transmitted through fax broadcaster Slingshot; and it cannot be genuinely disputed the Fax lacks compliant opt-out notice. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff seeks certification of the class of persons to whom the advertisements were sent by fax. As the Seventh Circuit held in Holtzman v. Turza, 728 F.3d 682, 683 (7th Cir. 2013, [c]lass certification is normal in litigation under 227 [the TCPA], because the main questions, such as whether a given fax is an advertisement, are common to all recipients. These cases present an archetypical example of a case in which the class action mechanism is superior to that of individual litigation of each claim. Hazel s Cup & Saucer, LLC v. Around the Globe Travel, Inc., 86 Mass. App. Ct. 164, 166 (2014. District courts in the Eleventh Circuit have regularly certified such classes. See Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 311 F.R.D. 688 (S.D. Fla. Aug. 5, 2015; Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, No CIV-SEITZ, 2014 WL 1 This is the second time Defendants have been sued for the February 4, 2014, fax broadcast. On April 29, 2015, a suit styled as Medical & Chiropractic Clinic, Inc. v. EclinicalWorks, LLC, EclinicalDirect, LLC, and EclinicalWeb, LLC, No. 15:cv CEH-EAJ (M.D. Fla Apr. 29, 2015 ( Medical & Chiro, was filed in this Court by Medical & Chiro, represented by the undersigned counsel. Following the denial of Defendants eclinical Direct, LLC and eclinical Web, LLC s motion to dismiss, see Medical & Chiropractic Clinic, Inc. v. EclinicalWorks, LLC, et al., 2015 WL (M.D. Fla. Nov. 20, 2015, the case settled on an individual basis pursuant to a confidential settlement agreement. During the course of that case, Plaintiff s counsel deposed various witnesses of Defendants, a witness from Slingshot, and obtained documents from Defendants and Slingshot. Plaintiffs expert, Robert Biggerstaff, produced an expert report in Medical & Chiro, Biggerstaff Report I, see infra. Biggerstaff supplemented that expert report in this case, Biggerstaff Report II, see id. 4

5 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 5 of 25 PageID (S.D. Fla. Dec. 24, 2014; C-Mart, Inc. v. Metro. Life Ins. Co., 299 F.R.D. 679 (S.D. Fla. 2014; A Aventura Chiro. Ctr., Inc. v. Med Waste Mgmt. LLC, No CIV- ALTONAGA, 2013 WL (S.D. Fla. July 3, This case is no exception. As argued below, the requirements of Rule 23(a and 23(b(3 are easily satisfied under the facts of this case. Plaintiffs request that the Court certify the class, appoint Plaintiffs as the class representatives, and appoint Plaintiffs counsel as class counsel. II. Factual Background 2 A. Defendants sent fax advertisements through fax broadcaster Slingshot. eclinicalworks provides electronic database management to healthcare clinics. Rajesh Puttankappa ( Puttankappa has worked for eclinicalworks since 2002 as a software engineer; he writes software that eclinicalworks sells. (Puttankappa Dep. Tr. at 6, 7; Perry Dep. Tr. at 11, 26. Jason Perry ( Perry has been employed by eclinicalworks since (Perry Dep. Tr. at 5. Since 2013, he has been team leader of eclinicalworks creative team, which creates the graphics for the print collateral and which also maintains eclinicalworks website. (Perry Dep. Tr. at 7, 8, 9. Vijay Bhavsar ( Bhavsar is an eclinicalworks software developer. (Puttankappa Dep. Tr. at 9. Parag Vasant also works within the eclinicalworks software development team and was so employed in February (Puttankappa Dep. Tr. at 9, 10. Geordie Sanborn ( Sanborn has been employed by eclinicalworks in sales since Copies of the following are attached to the Appendix of Exhibits: Expert Report of Robert Biggerstaff (January 15, 2015 ( Biggerstaff Report I (w/o exhibits, Exhibit A; Supplemental Expert Report of Robert Biggerstaff, March 16, 2017 ( Biggerstaff Report II (w/o exhibits, Exhibit B; Deposition of Jason R. Perry (November 4, 2015 ( Perry Dep. Tr., Exhibit C; Deposition of Rajesh B. Puttankappa (November 5, 2015 ( Puttankappa Dep. Tr., Exhibit D; Deposition of Geordie Sanborn (March 8, 2016 ( Sanborn Dep. Tr., Exhibit E; Deposition of Ian Jenkins (February 11, 2016 ( Jenkins Dep. Tr., Exhibit F; Declaration of Peter Licari ( Licari Decl., Exhibit G; Resumes for Plaintiffs counsel, Group Exhibit H. 5

6 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 6 of 25 PageID 91 (Sanborn Dep. Tr. at 6. Sanborn was eclinicalworks sales coordinator in (Perry Dep. at 11. Slingshot is a messaging company which provides services for faxing, , and interactive voice response. (Jenkins Dep. Tr. at 7. eclinicalworks entered into a customer service agreement with Slingshot for inbound and outbound single fax API services on or about October 14, (Jenkins Dep. Tr. at 24-25, Ex. 7; Puttankappa Dep. Tr. at 16, 17. On January 27, 2014, Sanborn sent Perry an to which was attached a document that would become the Fax at issue in this case; Perry s job was to recreate the attachment so it could be sent by fax. (Perry Dep. Tr. at 14; id. at Ex. 1 (Bates -stamped ECW 17. Perry discussed the contents of the document with Sanborn and was told to create a one page sheet to be sent from the information on the document. (Perry Dep. Tr. at 14. Perry was to create a document to be faxed that contained the company fonts, colors and logo as well as the information contained in the document. (Perry Dep. Tr. at 16. Sanborn similarly testified the marketing/creative team designed the Fax. (Sanborn Dep. Tr. at 11. Perry was also asked by Sanborn to add a link to the fax for opt-outs, which Perry did, adding a link on the fax and adding a new page on the company s website. (Perry Dep. Tr. at 16-17; id. at Ex. 2. Perry testified he never had any discussions with anyone at eclinicalworks regarding the necessary language that needs to be included in an opt-out notice. (Perry Dep. Tr. at 36. The opt-out notice on the Fax provides: If you would like to opt out from the fax communications please go to (Compl., Ex. A, Doc. 1-1, Page ID 19. Perry testified that when a recipient of a fax wanted to opt out, an was automatically generated after the recipient completed the opt-out form. (Perry Dep. at 18-19; id. at Ex. 3. 6

7 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 7 of 25 PageID 92 On January 29, 2014, Puttankappa sent Sanborn an (and cc d Bhavsar stating Please send the csv file. (Puttankappa Dep. Tr. at 10-11; id. at Ex. 8 (ECW 41. Puttankappa understood the csv file had something to do with a list of fax numbers. (Puttankappa Dep. Tr. at 11. Puttankappa testified he had heard of Slingshot we use their API [application programming interface] to send out faxes. (Puttankappa Dep. Tr. 15, 16. Puttankappa testified that he and Bhavsar know how to use the Slingshot API [application programming interface]. (Puttankappa Dep. Tr. at 24. When asked whether he was aware of whether Bhavsar or Parag sent fax advertisements using the Slingshot API to send fax advertisements, Puttankappa testified he did not know. (Puttankappa Dep. Tr. at 22. On January 31, 2014, Sanborn sent an to Bhavsar, cc d to Puttankappa and Parag Vasant, stating Attached is the Master file for Florida. I will be sending you the final 1 pager on Monday. If we can have this sent between 9-10 am Monday that will be great. (Sanborn Dep. Tr. at 18-19; id. at Ex. 5. Sanborn testified he did not recall how the master file for Florida was obtained, does not recall who he worked with to compile the list, and does not recall which department was involved in the decision to create the master file. (Sanborn Dep. Tr. at 18-20, 23. Notwithstanding the January 31, , Sanborn testified he was not familiar with Parag Vasant. (Sanborn Dep. Tr. at Sanborn does not recall why he wanted the Fax sent between 9 and 10 am on Monday. (Sanborn Dep. Tr. at 26. On February 3, 2014, Sanborn sent an to Bhavsar, Puttankappa, and Parag Vasant, stating: Can you please test the attached sheet this morning? The website is getting one final error corrected. Once the site is corrected I will let you know and it will be a GO. (Sanborn Dep. Tr. at 26-27; id. at Ex. 6 (ECW 994. Sanborn testified he does not recall if he was the one who made the decision to send the Fax. (Sanborn Dep. Tr. at 27, 32. On February 4, 2014, 7

8 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 8 of 25 PageID 93 Sanborn sent an to Bhavsar, Puttankappa, and Parag Vasant stating: I want to make sure we are only sending 1 fax. Whether it fails or not, we are not resending and putting in loop. (Sanborn Dep. Tr. at 33; id. at Ex. 7 (ECW Also on February 4, 2014, at 12:24 am, Sanborn sent an to Bhavsar, stating: Final Ready to Send. (Sanborn Dep. Tr. at 34; id. at Ex. 7 (ECW Sanborn does not recall whether the foregoing was the order to send the Fax. (Sanborn Dep. Tr. at 34. Sanborn sent an to Bhlavsar, Puttankappa, and Parag Vasant on February 11, 2014 stating: Do we have a report of successful numbers? I want to get an idea of how many successfully went through. (Sanborn Dep. Tr. at 34-35; id. at Ex. 7 (ECW Sanborn testified he does not recall if he ever reviewed a report of successful numbers. (Sanborn Dep. Tr. at 35. On March 13, 2014, Sanborn sent an to Bhasvar, cc d to Puttankappa, stating: Hi Vijay, I d like to send another round of faxes with the same document that we used last month. If I send you the list of numbers and document, is this something that can be sent today. (Sanborn Dep. Tr. at 36-37; id. at Ex. 8 (ECW Sanborn does not recall having any other discussions in March 2014 regarding sending additional faxes. (Sanborn Dep. Tr. at 37. Sanborn was not aware of any individual that was ever instructed by anybody to contact entities to request permission form those entities to send the Fax. (Sanborn Dep. Tr. at 37. Puttankappa was shown an he sent to Sanborn and Bhavsar and Parag asking Parag, are we done sending the faxes? Thanks Rajesh, and was asked: By reading this , does this jog your memory that Parag sent the faxes? (Puttankappa Dep. Tr. at 25; id. at Ex. 11. Puttankappa testified I don t remember. (Puttankappa Dep. Tr. at 25. Ian Jenkins ( Jenkins has been employed by Slingshot as an application developer since 2004; his job is to maintain and develop the platform to perform the faxing, , and 8

9 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 9 of 25 PageID 94 interactive voice response services offered by Slingshot. (Jenkins Dep. Tr. at 7. Pursuant to subpoena, Slingshot (Jenkins retrieved the fax transmission logs for the Fax at issue. (Jenkins Dep. Tr. at 9. The transmission logs were stored in an SQL database that was exported to a CSV filed and then produced. (Jenkins Dep. Tr. at 9. In examining the transmission logs for the Fax, OutboundFax_ csv (Jenkins Dep. Tr. Ex. 3, Jenkins explained the logs as follows: Column A is a unique identifier that uniquely identifies a fax, an outbound fax, in this case, within the Slingshot network, Column B identifies the customer s account number, Column C is the fax number that the request was sent to send the fax, i.e., the recipient, Column D is a time stamp in Eastern Standard Time that the fax was completed, Column E is the result of the fax transmission zero is successful, i.e., a successfully transmitted fax, Column F refers to the number of attempts to complete the fax, Column G refers to the time it took to send the fax, Column H is the speed in which the fax was transmitted, Column I is the number of pages successfully delivered, and Column J CSID is the subscriber identifier, which can be programmed into the receiving fax machine as an alphanumeric string, which is delivered back to Slingshot from the receiving fax machine. (Jenkins Dep. Tr. at 10-14, Ex. 3 (to be filed under seal after entry of a protective order. Jenkins explained that API stands for application program interface, which allows Slingshot customers to use Slingshot web services to send faxes, receive faxes and get the status on faxes customers tried to send. (Jenkins Dep. Tr. at 19. Jenkins testified it is the Slingshot customer that controls what is transmitted and what fax numbers are the intended destination. (Jenkins Dep. Tr. at 19. Invoices for fax transmissions for use of Slingshot s services are generated automatically. (Jenkins Dep. Tr. at eclincalworks received a statement dated February 28, 2014, which 9

10 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 10 of 25 PageID 95 charged $10, for outbound fax services. (Jenkins Dep. Tr. at 21, Ex. 6. eclinicalworks receives monthly statements from Slingshot by ; the statements are attached to . (Puttankappa Dep. Tr. at 21. Puttankappa was shown the statement dated February 28, 2014, in the amount of $23, (total charges for the month, not just outbound faxes; he agreed these are the types of statements received from Slingshot. (Puttankappa Dep. Tr. at 21; id. at Ex. 10. The date for the transmission of the Fax was February 4, (Jenkins Dep. Tr. at 21-22, Ex. 3. B. Defendants, through retained fax broadcaster Slingshot, successfully transmitted 27,209 fax advertisements to 18,300 unique fax numbers. Plaintiff s expert, Robert Biggerstaff ( Biggerstaff has an engineering degree from Clemson University and is a certified computer forensic examiner and a member of the International Society of Forensic Computer Examiners. (Biggerstaff I Report at 3, 4. Biggerstaff has extensive experience in analyzing computer records in TCPA claims. (Id. at 5. For his Biggerstaff I Report, Biggerstaff reviewed, inter alia, the following materials in generating his report in this case: (a the Complaint with exhibits; (b Excel file ECW xlsx. ; and (c text file OutboundFax_ csv. (Id. at 9. (Id. at 12. logs, stating: As to his review of ECW xlsx (target list, Biggerstaff stated: I examined an Excel file, ECW xlsx, which Mr. Kelly [Plaintiff s counsel] informed was reportedly used as the target list of fax numbers for fax broadcasting. This target list contained 39,714 rows of data and no header. I normalized the fax numbers and eliminated text and blank entries. This analysis found 28,915 unique fax numbers in the target list. I found that 7,407 numbers were listed 2 or more times in the target list (i.e. duplicated. Biggerstaff also reviewed/examined the OutboundFax_ csv (fax transmission 10

11 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 11 of 25 PageID 96 The contents and format of these records is consistent with fax logs produced by a computer-based fax broadcasting platform which contemporaneously and automatically records metadata including the outcome of the documented fax transmissions. Each record indicated, inter alia, destination fax number, date and time, number of attempts, duration, speed, pages, and a result status for each transmission. In particular, these data are consistent with fax logs produced by Slingshot, based on my prior experience with data produced by Slingshot. The fax transmission log contained 39,438 rows of data plus 1 header row. I imported this log and normalized fax numbers. I then selected only rows where the number of pages was 1" and the status was 0" indicating a fully received error-free fax transmission of a single page. This identified 27,459 records of fully received error-free fax transmissions of a single page sent to 18,464 unique fax numbers. I then matched those 27,459 records of fully received error-free fax transmission of a single page to the target list by fax number. This analysis found 27,209 fully received error-free fax transmission of a single page that were sent to 18,300 unique fax numbers from the target list. A list of those 18,300 unique fax numbers and the number of fully received error-free fax transmissions documented in the log as received by each fax number, is attached as Exhibit 1 hereto. (Id. at 13, 14, 15. In his Biggerstaff II Report, Biggerstaff identified one fully-received-error-free Fax transmission to Plaintiffs fax number (Biggerstaff II Report, at 9, 10. III. The TCPA and its Opt-Out Requirement. The TCPA generally forbids the use of any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, 47 U.S.C. 227(b(1(C, and provides for statutory damages of $500 for each violation, which the Court may treble to $1,500 if a sender s violation was willful or knowing. Id. 227(b(3(A-(B. FCC regulations promulgated under the TCPA define a sender as a person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement. 47 C.F.R (f(10. 11

12 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 12 of 25 PageID 97 elements: There is only one statutory exception to TCPA liability. The exception has three (i the unsolicited advertisement is from a sender with an established business relationship with the recipient; (ii the sender obtained the number of the telephone facsimile machine through-- (I the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or (II a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number of the recipient before such date of enactment; and (iii the unsolicited advertisement contains a notice meeting the requirements under paragraph (2(D. 47 U.S.C. 227(b(1(C. In sum, the statute requires three things for a valid defense to a TCPA claim: (1 the sender has an EBR with the recipient; (2 the sender obtained the recipient s fax number either through a voluntary communication between the two or through a public source on which the recipient voluntarily made the number available; and (3 the fax has an opt-out notice meeting the requirements of the statute. The opt-out-notice requirement is contained in 47 U.S.C. 227(b(2(D, which directs the FCC to prescribe regulations to implement the requirement. The corresponding FCC regulation requires that an opt-out notice must: (1 Be clear and conspicuous and on the first page of the advertisement; 12

13 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 13 of 25 PageID 98 (2 State that the recipient may make a request to the sender not to send any future unsolicited advertisements and that failure to comply within 30 days is unlawful; (3 Set forth the requirements for a request under 47 U.S.C. 227(b(2(E; 3 (4 Include a domestic contact telephone and facsimile number for the recipient, and a cost-free mechanism for a recipient to transmit a request; and (5 Permit the recipient to make such a request at any time on any day of the week. 47 C.F.R (a(4(iii. The text of the regulation states, [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 that complies with the requirements in paragraph (a(4(iii of this section. 47 C.F.R (a(4(iv. The FCC s 2006 order issuing the regulation states the regulation means what it says: the opt-out notice is required for all fax advertisements, even if there is an EBR or the sender has obtained prior express permission. In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg , 25972, 2006 WL (May 3, 2006 ( In addition, entities that send facsimile advertisements to consumers from whom they obtained permission must include on the advertisements their opt-out notice and contact information to allow consumers to stop unwanted faxes in the future.. IV. Because the Fax at issue does not contain a proper opt-out notice, neither EBR nor prior express permission is available as a defense. As stated, the Fax contains the following opt-out language: If you would like to opt out from the fax communications please go to (Compl., Ex. A, 3 47 U.S.C. 227(b(2(E states that a request not to send future unsolicited advertisements will be binding only if (1 it identifies the telephone number or numbers of the telephone facsimile machine to which the request relates; (2 the request is made to the telephone or facsimile number of the sender; and (3 the person making the request has not subsequent to such request provided express invitation or permission to the sender. 13

14 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 14 of 25 PageID 99 Doc. 1-1, Page ID 16. This notice fails to comply with the regulatory notice requirement for the following reasons. First, it fails to inform the recipient that failure to comply with an opt-out request within 30 days is unlawful. Second, it does not state that an opt-out request must (a identify the fax number opting out, (b be sent to the sender s fax or phone number, and (c that the person requesting the opt-out not subsequently provide express permission or invitation. Third, the opt-out notice does not include a domestic facsimile number for the recipient to opt out. Fourth, as a matter of law, the opt-out notice is not clear and conspicuous. The word clear presumably means in easy to understand language. Murray v. New Cingular Wireless Servs., Inc., 523 F.3d 719, 725 (7th Cir (defining clear and conspicuous under the Fair Credit Reporting Act ( FCRA. Conspicuous, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Id. at 726. The courts consider the location of the notice within the document, the type size used within the notice as well as the type size in comparison to the rest of the document as well as whether the notice is set off in any other way spacing, font style, all capital, etc. In short, there must be something about the way that the notice is presented in the document such that the consumer s attention will be drawn to it. Cole v. U.S. Capital, Inc., 389 F.3d 719, 731 (7th Cir (defining clear and conspicuous under the FCRA after reviewing the clear and conspicuous standards under TILA and the UCC. 14

15 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 15 of 25 PageID 100 Here, the opt-out notice fails the clear and conspicuous standard because the font size is smaller than the rest of the text, making it harder to read. By placing the notice in tiny font on the bottom-right of the fax, the opt-out notice is more difficult to read instead of conspicuous as required. Defendants have not yet asserted affirmative defenses of EBR and prior express permission or invitation. (See Doc. 14, Page ID However, the lack of compliant opt-out notice on the faxes precludes either potential defense from being viable as to any class member. Turza, 728 F.3d at 683 ( Turza s faxes did not contain opt-out information, so if they are properly understood as advertising then they violate the Act whether or not the recipients were among Turza s clients. ; Nack v. Walburg, 715 F.3d 680, 685 (8th Cir. May 21, 2013 (EBR and consent are not a defense to certification of classes of individuals who received faxes with improper opt-out language. Indeed, an EBR as defined by the statute requires as an element a compliant opt-out notice. Turza, 728 F.3d at 683 ( Even when the Act permits fax ads as it does to persons who have consented to receive them, or to those who have established business relations with the sender the fax must tell the recipient how to stop receiving future messages. (citing 47 U.S.C. 227(b(1(C(iii, (2(D. defense. In sum, the non-compliant opt-out notice precludes any attempted EBR or permission V. Argument Plaintiffs propose the following class definition: All persons who were sent one or more of the facsimile sent on or about February 4, 2014, from either eclinicalworks, LLC, eclinicaldirect LLC, or eclinicalweb, LLC, which contained an opt out notice the same or similar to the following: If you would like to opt out from fax communications please go to To achieve class certification, Plaintiffs must demonstrate that Rule 23(a s four 15

16 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 16 of 25 PageID 101 prerequisites are satisfied: (1 that the proposed class is so numerous that joinder of all members is impracticable; (2 that there are questions of law or fact common to the class; (3 that the claims of the representative party are typical of the claims of the class; and (4 that the representative party will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a; see also Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir In addition to satisfying the requirements of Rule 23(a, the plaintiff must satisfy one of the subsections of Rule 23(b. Id. Class actions promote judicial economy by aggregating small claims into one lawsuit. Further, [c]lass actions... permit the plaintiffs to pool claims which would be uneconomical to litigate individually. [M]ost of the plaintiffs would have no realistic day in court if a class action were not available. Phillips Petroleum v. Shutts, 472 U.S. 797, (1985. Here, as discussed below, the Rule 23(a requirements numerosity, commonality, typicality, and adequacy are easily met. The Rule 23(b(3 requirements of predominance and superiority are also satisfied. The common legal issues (such as whether the Fax is an advertisement under the TCPA predominate, and there will be no class-member-specific issues for the Court to decide at trial. A class action is clearly superior because it would make no economic sense to bring an individual lawsuit for $500 to $1,500 in statutory damages. In addition, the proposed class is ascertainable. For these reasons, as argued below, the Court should grant class certification. A. The proposed class is ascertainable. Before establishing the express requirements of Rule 23(a, a plaintiff must establish the proposed class is adequately defined and clearly ascertainable. Physicians HealthSource v. Doctor Diabetic, 2014 WL , at *4 (S.D. Fla. Dec. 24, 2014; Little v. T-Mobile USA, Inc., 691 F.3d 1302, (11th Cir An ascertainable class exists if it is defined by 16

17 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 17 of 25 PageID 102 objective criteria allowing class members to be identified through a manageable process that does not require much, if any, individual inquiry. Doctor Diabetic, 2014 WL , at *4; Bussey v. Macon County Greyhound Park, Inc., 562 Fed. App x 782, 787 (11th Cir Here, it is clear that the class is defined by objective criteria of being sent a particular Fax on a particular day. In fact, Biggerstaff in his Biggerstaff I Report has already identified the class, at least the unique fax numbers to which the Fax was sent (18,300, less Medical & Chiro s fax number, and the number of Faxes sent to those numbers (27,209, less the Faxes sent to Medical & Chiro. (See Biggerstaff I Report at 1, 15, 42, and Ex. 1. In Doctor Diabetic, the plaintiff relied on an expert report submitted by Biggerstaff that employed similar methods as employed in the instant case regarding determining the number of faxes successfully transmitted Biggerstaff determined that the 2008 Fax was successfully sent to and received by 4,324 unique recipients. Doctor Diabetic, 2014 WL , at *4. In finding the class ascertainable, the court stated: Biggerstaff s methodology is sound and reliable, and it provides a manageable process for identifying class members using objective criteria. Id.; see also Palm Beach Golf, 311 F.R.D. at 694 ( The majority of courts to consider the issue have concluded that such a definition, supported by a report like the Biggerstaff report prepared for this case, satisfies Rule 23 s implicit ascertainability and administrative feasibility requirement. ; C-Mart, 299 F.R.D. at 689 ( I find the proposed class ascertainable and adequately defined. ; A Aventura, 2013 WL , at *5 (class of persons sent particular faxes was ascertainable and consistent with the text of the TCPA, which prohibits the sending of a fax. In American Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 545 (6th 2014, the Sixth Circuit held in a TCPA fax case that the record demonstrates that the fax numbers are objective data satisfying the ascertainability requirement. 17

18 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 18 of 25 PageID 103 In short, Plaintiffs proposed class is ascertainable. B. Numerosity. The numerosity requirement of Rule 23(a(1 is satisfied where the class is so numerous that joinder of all members [of the Class] is impracticable. There is no exact number that a plaintiff needs to present to satisfy numerosity. Cheney v. Cyberguard Corp., 213 F.R.D. 484, 490 (S.D. Fla The Eleventh Circuit has held that less than twenty-one is inadequate, more than forty adequate. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir (quoting 3B Moore s Fed. Prac (1 n.7 (1978. In this case, Defendants sent 27,209 Faxes to 18,300 fax numbers. (Biggerstaff I Report at 1, 15, 42. Joinder of this many class members is not feasible. Therefore, Rule 23(a(1 s numerosity requirement is satisfied. B. Commonality. To satisfy the commonality requirement, a movant must show that there are questions of law or fact common to the class. Fed. R. Civ. P. 23(a(2. There need only be at least one issue whose resolution will affect all or a significant number of the putative class members. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir This rule does not require that the claims of class members be identical. Stewart, 669 F.2d at 335 (citing Johnson v. Am. Credit Co., 581 F.2d 526, 532 (5th Cir Nor does it require that the common questions predominate over individual issues, as required under Rule 23(b(3. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir It merely requires one issue of fact or law that can be decided classwide. Fabricant v. Sears Roebuck, 202 F.R.D. 310, 313 (S.D. Fla Commonality is generally satisfied when a plaintiff alleges that a defendant has engaged in a course of conduct that is standardized across the class and affects all class members. Id. 18

19 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 19 of 25 PageID 104 Here, Defendants engaged in standardized conduct involving a common nucleus of operative facts by faxing the same advertisement to Plaintiffs and the rest of the class. Indeed, as discussed above, Slingshot was used to transmit the Fax, and the Fax was created by Defendants -- it cannot be genuinely disputed that the Fax is an advertisement under the TCPA. Each class member was treated exactly the same, having been sent the Fax that is the subject of this Motion, giving rise to common factual issues, such as the content of the Fax, how many were sent, and when they were sent. The common legal questions presented under the TCPA include the following: (1 Whether the Fax constitutes an advertisement ; (2 Whether the Fax contained a compliant opt-out notice; (3 Whether eclinical Works, LLC, eclinical Direct LLC, and eclinicalweb, LLC meet the definition of sender for direct TCPA liability, meaning a person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement, 47 C.F.R (f(10; (4 Whether eclinical Works, LLC, eclinical Direct LLC, and eclinicalweb, LLC are jointly and severally liable to the class; (5 Whether Plaintiffs and other class members are entitled to statutory damages; and (6 Whether eclinical Works, LLC, eclinical Direct LLC, and eclinicalweb, LLC s acts were willful or knowing under the TCPA and if so whether the Court should treble the statutory damages. Any one of these issues can be resolved as to the entire class. Therefore, the commonality requirement of Rule 23 is satisfied. D. Typicality. To satisfy Rule 23(a(3 s typicality requirement, a plaintiff must possess the same interest and have suffered the same injury as the other class members. Murray v. Auslander, 244 F.3d 807, 811 (11th Cir Typicality can be satisfied even if substantial factual differences 19

20 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 20 of 25 PageID 105 exist between the plaintiff and the other class members if there is a strong similarity of legal theories. Id. Typicality is present if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir Typicality is satisfied in this case because each of the class members was subjected to the same conduct, i.e., Defendants fax-advertising campaign. Plaintiffs and each member of the class received the same Fax advertisement and each class member s claim is based on the same legal theory as Plaintiffs. See Doctor Diabetic, 2014 WL , at *6 (typicality satisfied because named plaintiff received the same fax as the rest of the class, and his case raises the same factual and legal questions. E. Adequacy of representation. 1. Rule 23(a(4 s adequacy requirement. In examining adequacy of the class representative, the court examines (1 whether any substantial conflicts of interest exist between the representatives and the class; and (2 whether the representatives will adequately prosecute the action. Doctor Diabetic, 2014 WL , at *7. As noted above, Plaintiffs claim is identical to the claims of the other class members, making its interests aligned with the other class members interests. Plaintiff is a Florida corporation that operates a chiropractic facility located at N. 53rd Street in Tampa, FL (Licari Decl. at 2. On or about February 4, 2014, Plaintiffs received the Fax on its fax machine at the number ( (Id. at 3. Peter Licari/Licari Chiropractic was the subscriber to the account associated with ( in (Id. Plaintiffs did not give prior express invitation or permission for any of the Defendants to send junk faxes to Plaintiffs fax number. (Id. at 4. Plaintiffs understand their obligations and the nature of the claims in this case. (Id. at 20

21 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 21 of 25 PageID Plaintiffs are seeking a claim under the TCPA to certify a class of all persons who were sent faxes from the Defendants advertising their products. (Id.. Plaintiff is willing to do whatever is necessary to protect the interests of the absent class members and are unaware of any conflicts of interest with any class members. (Id. at 7, 8. Therefore, Rule 23(a(4 s adequacy requirement is satisfied. 2. Rule 23(g s Adequacy of Class Counsel Requirement. Plaintiffs counsel are well qualified to represent the Class. In determining whether counsel are qualified, Rule 23(g lists four factors for the Court to consider: (1 the work counsel has done in identifying or investigating potential claims in the action; (2 counsel s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3 counsel s knowledge of the applicable law; and (4 the resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g(1(A. Here, Plaintiffs counsel are experienced lawyers who are clearly qualified to act as counsel for the class. Resumes for Plaintiffs counsel are attached as Group Exhibit H. They have been appointed as lead or co-lead counsel in many contested class actions and have recovered substantial monies for their clients and the class members. They have been litigating TCPA claims for many years and have negotiated class-wide settlements in many cases. Plaintiffs counsel has allocated and will continue to commit adequate resources, both staffing and monetary, to ensure that the class is properly represented in this case. F. The Rule 23(b(3 Requirements are Satisfied. To certify a class, a plaintiff must also satisfy one of the subsections of Rule 23(b. Cheney, 213 F.R.D. at 489. Here, Plaintiffs seek certification under Rule 23(b(3, which requires that questions of law or fact common to the members of the class predominate over any 21

22 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 22 of 25 PageID 107 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. Fed. R. Civ. P. 23(b(3. 1. Predominance. The predominance inquiry of Rule 23(b(3 is more demanding than Rule 23(a s commonality requirement. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, (1997. In the context of Rule 23(b(3, issues which are subject to generalized proof must predominate over issues that are subject only to individualized proof. Kerr v. City of West Palm Beach, 875 F.2d 1546, 1558 (11th Cir (quoting Nichols v. Mobile Bd. Of Realtors, Inc., 675 F.2d 671, 676 (5th Cir In determining whether common questions predominate under Rule 23(b(3, courts generally focus on whether there are common liability issues which may be resolved efficiently on a class wide basis. Brown v. SCI Funeral Servs. of Fla., Inc., 212 F.R.D. 602, 606 (S.D. Fla In this case, common legal issues predominate because the class members claims arise under a single federal statute. Those questions e.g., whether the Fax meets the definition of an advertisement, whether Defendants meet the definition of a sender, and whether the opt-out language was deficient are common to the entire class. Again, since each class member was sent the same Fax, there are no individualized questions that would vary class member by class member. Furthermore, as discussed above, the affirmative defenses of EBR and permission are unavailable in light of the non-compliant opt-out notice. See Doctor Diabetic, 2014 WL , at *5 ( Courts routinely certify TCPA class actions precisely because the requirement of an opt-out notice obviates the need to consider consent or established business relationships.. Therefore, Rule 23(b(3 s predominance requirement is satisfied. 22

23 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 23 of 25 PageID Superiority. Finally, Rule 23(b(3 requires that a class action be the superior method for adjudicating the claims. Certifying a class is superior when a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Amchem, 521 U.S. at 615. In Amchem, the Supreme Court noted one of the purposes underlying Rule 23(b(3 was vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all. Id. at 617. Here, a class action is superior to individual actions for TCPA violations because the ordinary statutory damages are only $500 and the TCPA does not allow for shifting of attorney fees. See Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 753 (2012 (noting that nearly all TCPA cases are brought as class actions because the relatively low statutory damages do not justify individual suits; Doctor Diabetic, 2014 WL , at *9 ( Congress expressly created the TCPA as a bounty statute to increase the incentives for private plaintiffs to enforce the law. ; C-Mart, 299 F.R.D. at 691 (noting the large number of claims, along with the relatively small statutory damages ; A Aventura, 2013 WL , at *4; Jay Clogg Realty Grp., Inc. v. Burger King Corp., 298 F.R.D. 304, 310 (D. Md (class action more effective to eliminate scourge of unsolicited faxes; Critchfield Physical Therapy v. Taranto Grp., Inc., 263 P.3d 767, 778 (Kan (denial of certification would frustrate the intent of the TCPA and protect junk fax advertisers from liability. Finally, defendants often argue class certification is not superior because they face significant classwide liability, but the magnitude of the exposure does not affect superiority. See Klay v. Humana, Inc., 382 F.3d 1241, 1274 (11th Cir ( It would be unjust to allow 23

24 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 24 of 25 PageID 109 corporations to engage in rampant and systematic wrongdoing, and then allow them to avoid a class action because the consequences of being held accountable for their misdeeds would be financially ruinous.. In Doctor Diabetic, 2014 WL , at *9 10, the court held a class was superior under Klay, rejecting the ruinous liability argument because the TCPA reflects Congress s judgment that defendants should face $500 in liability for each fax advertisement that fails to include an opt-out notice. See also Manno v. Healthcare Rev. Recovery Grp., LLC, 289 F.R.D. 674, (S.D. Fla (TCPA class superior under Klay, and larger liability does not mean disproportionate, where Congress has determined the proportionate and appropriate damages. VI. Local Rule 4.04 regarding defraying cost of Rule 23(c(2 notice. Plaintiffs suggest that Rule 23(c(2 notice be first attempted by fax (three attempts and if unsuccessful, by postcard (U.S. Mail. Plaintiffs submit that in the event the Court certifies the Class, notice by fax would defray costs and is particularly expeditious in this case as all of the fax numbers to which notice would be sent are already of record. Dated: March 21, 2017 Respectfully submitted, By: /s/ Ryan M. Kelly Counsel for Plaintiffs Brian J. Wanca Ryan M. Kelly (Florida Bar No ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL Telephone: ( Facsimile: ( rkelly@andersonwanca.com 24

25 Case 8:16-cv MSS-JSS Document 17 Filed 03/21/17 Page 25 of 25 PageID 110 CERTIFICATE OF SERVICE I hereby certify that on March 21, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all attorneys of record. /s/ Ryan M. Kelly 25