Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 1 of 10 PageID #:328 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Florence Mussat, M.D. S.C., individually and on behalf of similarly situated persons, v. Plaintiff, E.S. Medical Equipment and Supplies, Defendant. No. 16-cv-1240 Judge Ronald A. Guzmán ORDER The Court grants Plaintiff s motion for class certification [74]. Plaintiff is ordered to file an amended class definition, consistent with this order, within fourteen days. A status hearing is set for January 11, 2017 at 9:30 A.M. STATEMENT This is a putative junk fax class action under the Telephone Consumer Protection Act ( TCPA, 27 U.S.C. 227. Plaintiff Florence Mussat, M.D., S.C. ( Plaintiff claims that she and other similarly-situated doctors and doctors offices were sent unsolicited fax advertisements from defendant E.S. Medical Supplies and Equipment, Inc. ( Defendant. 1 Those faxes, moreover, did not contain an opt-out notice as required by the TCPA. Plaintiff now seeks class certification under Rules 23(b(2 and (b(3. For the following reasons, the Court grants Plaintiff s motion. 1 Although Plaintiff is suing via her corporate identity, the Court will refer to her individually for narrative ease.
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 2 of 10 PageID #:329 LEGAL STANDARD Federal Rule of Civil Procedure 23(a sets out the four prerequisites to class actions, familiarly shorthanded as (1 numerosity, (2 commonality, (3 typicality, and (4 adequacy of representation. See Fed. R. Civ. P. 23(a. Beyond that, class certification requires the satisfaction of at least one of three additional requirements specified in Rule 23(b. Fed. R. Civ. P. 23(b. Under Rule 23(b(2, a class can be certified if the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Id. Rule 23(b(3, in contrast, permits certification 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 methods for the fair adjudication of the controversy. Id. District courts have broad discretion in deciding motions for class certification. Reiter v. Sonotome Corp., 442 U.S. 330, 345 (1979, but the party seeking class certification carries the burden of demonstrating that each element is met. Retired Chicago Police Ass n v. City of Chi. 7 F.3d 584, 596 (7th Cir. 1993. DISCUSSION Plaintiff seeks certification based on the following class definition: All persons who were successfully sent a fax in the form of Exhibit A, advertising products available at www.esmedical.com offering 2 discounts on all products for all of 2016. (Pl. s Mot. [Dkt. # 74] at 1; see also id., Ex A. Defendant opposes certification on three grounds: (1 the class definition is overbroad, rendering the class unascertainable; (2 Plaintiff s claim is not typical of the class; and (3 Plaintiff is an inadequate representative. The Court will address these arguments within the familiar framework of Rule 23. 2
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 3 of 10 PageID #:330 I. Rule 23(a (A Numerosity A class must be so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a(1. The precise number of persons in the class need not be specified, nor are plaintiffs required to establish the exact identity of the class members. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989 (citation omitted. A plaintiff may not, however, rely solely on conclusory allegations of class size. Id. To that end, Plaintiff has submitted a Broadcast Fax Job Summary Report, obtained through discovery, which indicates that the subject fax was sent to 3,633 fax numbers. (See Pl. s Mot [Dkt. # 74, Ex. B]. Although it is unclear whether each of those numbers represents a distinct individual, the Court is satisfied that the class is sufficiently numerous to warrant cerrtification. See Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D. Ill. 1995 (explaining that numerosity is typically satisfied where the class has 40 or more members; Hinman v. M & M Rental Ctr., Inc., 545 F. Supp. 2d 802, 806 (N.D. Ill. 2008 (similarly relying on a defendant s third-party fax company s report to establish numerosity. (i Class Definition While Defendant does not challenge numerosity per se, it argues the class must nonetheless fail because of a related issue: ascertainability. See Holmes v. Godinez, 311 F.R.D. 177, 213 (N.D. Ill. 2015 ( An implied requirement of Rule 23(a dictates that the [proposed class] definition [must] be sufficiently definite that its members are ascertainable.. To be ascertainable, the class definition must simply be framed in terms of objective criteria, such as the identification of a particular group, harmed during a particular time frame, in a particular way. Mullins v. Direct Dig., LLC, 795 F.3d 654, 672 (7th Cir. 2015. s 3
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 4 of 10 PageID #:331 In that respect, Defendant first suggests that the proposed class definition is too vague because it refers to all persons who were sent the subject fax, whereas the list of recipients Plaintiff is relying upon (noted above is composed of doctors names, business names, and fax numbers, which leaves one guessing about who actually received the faxes. But this issue can be easily circumvented by amending the class definition to include all persons and entities to whom the subject was sent. See Kasalo v. Harris & Harris, Ltd. 656 F.3d 557, 563 (7th Cir. 2001 ( The obligation to define the class falls on the judge s shoulders under [Rule 23]. ; see also CE Design Ltd. v. Cy s Crabhouse N., Inc., 259 F.R.D. 135, 140 (N.D. Ill. 2009 (certifying a class of all persons and entities who were sent the subject fax. Moreover, Plaintiff has also provided a portion of a fax log that specifically identifies the individuals who were successfully sent the subject fax and the offices to which they belong. (See Fax Log [Dkt. # 94, Ex. A]. The Court therefore has no doubt that the identity of the class members can be easily ascertained. Nonetheless, Defendant further contends that certification is inappropriate because the Court would have to determine on a case-by-case basis whether each member gave prior express consent to receiving fax ads, since consent can be a defense to liability under the TCPA. See 47 U.S.C. 227(a(4 (defining an unsolicited advertisement as one that is received without prior express consent; In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 21 F.C.C.R. 3787, 3803 (2006 (explaining that consent is a defense to liability under the TCPA s junk fax provisions. But there are at least two fatal flaws in this argument. First, a class definition need not negate the possibility of a successful affirmative defense. Requiring otherwise would, as the Seventh Circuit recently noted, put the cart before the horse. Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014. How many (if any of the class members have a valid claim is an issue to be determined after the class is 4
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 5 of 10 PageID #:332 certified. Id. (emphasis in original. 2 Second, and more fundamentally, consent is irrelevant to the class claims: Plaintiff alleges that the subject fax violated the TCPA because it did not contain an opt-out notice, 3 and prior express consent is not a defense to liability in this regard. See Ira Holtzman, C.P.A., & Assocs. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013 ( Even when the [TCPA] permits fax ads as it does to persons who have consented to receive them the fax must still tell the recipient how to stop receiving future messages.... [Defendant 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 [consented]. ; see also GM Sign, Inc. v. Group C Commc ns, No. 08 C 4521, 2010 WL 744262, *3 (N.D. Ill. Feb. 25, 2010 (stating that the mere possibility that some of the proposed class members may have independently consented does not warrant denial of class certification. In the end, Plaintiff s class definition refers to a finite set of individuals who received the same fax, and determining their membership does not require a case-by-case inquiry into the merits of their claims. The Court is therefore satisfied that the class is ascertainable based on the following (amended definition: All persons and entities who were successfully sent a fax [on X date(s] in the form of Exhibit A, advertising products available at www.esmedical.com offering 2 discounts on all products for all of 2016. 2 The availability of a defense is not necessarily irrelevant to the class certification inquiry; it may be germane (in some cases, but not in this one, as discussed further below to the adequacy of the plaintiff as a class representative, or to the question of whether common issues predominate over individual issues. But as Parko teaches, it does not restrict the scope of the class itself. Parko, 739 F.3d at 1085. The class definition need only show that the members are reasonably ascertainable, not that their claims have a reasonable likelihood of success on the merits. 3 See 47 U.S.C. 227(b(1(C(iii, (2(D (requiring that unsolicited fax ads contain a notice on the first page that instructs the recipient how to request that they not receive future fax ads from the sender. 5
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 6 of 10 PageID #:333 Plaintiff is ordered to file an amended class definition within fourteen days that specifies the date(s on which the subject fax was sent. See CE Design Ltd., 259 F.R.D. at 140 (requiring the class definition to specify the dates on which the subject fax was sent. (B Commonality Next, with respect to commonality, Rule 23(a(2 requires that questions of law or fact common to the class must exist. Fed. R Civ. P. 23(a(2. This is generally satisfied where the class claims concern a common nucleus of operative fact and where the defendant has engaged in standardized conduct towards members of the proposed class. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998. The commonality requirement does not, however, demand that every member of the class have an identical claim. It is enough that there are one or more common questions of law or fact. Spano v. The Boeing Co, 633 F.3d 574, 585 (7th Cir. 2011. In other words, factual variation among the class grievances does not preclude certification. Rosario v. Livaditis, 963 F.2d 1013, 1017 18 (7th Cir. 1992. Here, the class claims plainly arise from a common nucleus of operative fact: Defendant s use of a third party (Westfax to send the subject fax to doctors offices across the country. The class claims, moreover, involve the application of the same legal principles, such as (1 the provisions of the TCPA and its corresponding regulations; (2 whether Defendant s fax was an advertisement under the TCPA; (3 whether the fax contained a sufficient opt-out notice; and (4 whether the class is entitled to statutory damages. Accordingly, the Court finds that there are sufficiently common questions of law and fact among the class. (C Typicality Rule 23(a(3 further requires that the claims or defenses of the representative parties must also be typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a(3. The 6
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 7 of 10 PageID #:334 representative s claims are deemed to be typical if they arise[ ] from the same event or practice or course of conduct that gives rise the claims of other class members and [their] claims are based on the same legal theory. De La Fuente v. Stokely Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983. Here, Defendant asserts that typicality is negated by the need for an individualized inquiry into the recipients identities, whether there were established business relationships, whether consent was provided, [and] whether [their] fax numbers were published in directors or websites. (Def. s Br. [87] at 7. But this is merely a repackaging of Defendant s prior arguments concerning ascertainability and consent, which the Court has rejected. As things stand, Plaintiff received the same fax as the other class members, and her claim is based on Defendant s failure to include an opt-out notice in the fax. Plaintiff s claim is therefore typical of the class. (D Adequacy (i Plaintiff As the named representative, Plaintiff must fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a(4. This aspect of Rule 23 is satisfied if the representative possesses the same interests and suffered the same injury as the class members. Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 985 (7th Cir. 2002. Plaintiff fits squarely within this requirement: she received the same fax as the class and is seeking the same relief. Defendant s attempt to undermine this conclusion is unpersuasive: it contends that Plaintiff is a professional class representative 4 and further notes that she is suing as a corporate entity, whereas the proposed class consists of persons. But Defendant cites no authority 4 Plaintiff has been found to be an adequate representative in at least one other TCPA class action. See, e.g., Florence Mussat, M.D., S.C. v. Global Healthcare Resources, LLC, 11-v-7035, 2013 U.S. DIST. LEXIS 35107, at * 13 (N.D. Ill. Mar. 13, 2013. 7
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 8 of 10 PageID #:335 suggesting that being a professional plaintiff somehow undermines Plaintiff s adequacy in this case, 5 and the Court s amendment to class definition moots Defendant s latter contention. Accordingly, the Court is satisfied that Plaintiff will adequately represent the class. (ii Class Counsel In addition to the named representative, Rule 23 further requires that class counsel be qualified, experienced, and able to adequately represent the interests of the class. Fed. R. Civ. P. 23(g. Counsel should show that they would prosecute the case in the interest of the class... rather than just in their interests as lawyers who if successful will obtain a share of any judgment or settlement as compensation for their efforts. Creative Montessori Learning Ctr. v. Ashford Gear LLC, 662 F.3d 913, 917 (7th Cir. 2011. If class counsel has been found adequate in other cases, it is persuasive evidence that they will be adequate again. Morris v. Risk Mgmt. Alternatives, Inc., 203 F.R.D. 336, 334 (N.D. Ill. 2001. In the instant matter, Plaintiff s counsel has submitted a declaration in which he attests to the following: he is an attorney with over fourteen years of experience in complex commercial litigation and class actions; he has been approved as class counsel in roughly twenty cases in this district alone; and he represented objectors in several high-profile class actions before the Seventh Circuit. (See Warner Decl. [Dkt. # 74, Ex. C] at 1-4. Defendant does not challenge counsel s qualification in any way. Thus, based on counsel s experience in litigating class actions, the Court is satisfied that he is qualified to be class counsel. II. Rule 23(b(3 Turning to the requirements of Rule 23(b(3, the questions of law or fact common of the members of the class [must] predominate over any questions affecting only individual 5 Indeed, the Seventh Circuit has suggested quite the opposite: Repeat litigants may be better able to monitor the conduct of counsel, who as a practical matter are the class s real champions. Murray v. GMAC Mort. Corp., 434 F.3d 948, 954 (7th Cir. 2006. 8
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 9 of 10 PageID #:336 members, and litigating the suit as a class must be superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P 23(b(3. With respect to predominance, when a class challenges a single act by the defendant, the legality of that of that act tends to be the predominant issue. CE Design Ltd., 259 F.R.D. at 142. That is precisely what we have here: the class members claims arise under the same federal statute, and Plaintiff has presented evidence that Defendant successfully sent a fax without an opt-out notice to 3,633 recipients; The class members claims, moreover, relate to each member s receipt of the same fax, and, because consent is irrelevant to opt-out liability, there is little reason to believe that individualized factual issues will overwhelm the common questions. Thus, as Defendant has not identified any basis to hold that this case will be different than the normal TCPA class action in which the common issues arise from the nearsimultaneous transmission, by the same defendant, of the same unsolicited fax the Court finds that Plaintiff has demonstrated predominance under Rule 23(b(3. Concerning superiority, four factors are relevant: (1 the class members interests in individually controlling the prosecution or defense of separate actions ; (2 the extent and nature of any litigation concerning the controversy already begun by or against class members ; (3 the desirability or undesirability of concentrating the litigation of the claims in the particular forum ; and (4 the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b(3(A- (D. These considerations militate in favor of litigating this case as a class action. There are up to 3,633 plaintiffs with the same claim under the same provision of the TCPA. Given this large number, disposition by class action would undoubtedly be an efficient use of judicial resources. Further, since the statutory recovery under the TCPA is the greater of $500 or actual monetary loss, 47 U.S.C. 227(b(3(B, and there is no indication that any class member incurred a loss 9
Case: 1:16-cv-01240 Document #: 95 Filed: 12/20/16 Page 10 of 10 PageID #:337 greater than the toner, ink, and paper required to print one fax, the class members (as individuals have little incentive to bring suit on their own. See Pastor v. State Farm Mut. Auto Ins. Co., 487 F.3d 1042, 1047 (7th Cir. 2007 ( Small recoveries do not provide the incentive for any individual to bring a solo action.. Regarding venue, as Plaintiff notes, this district is a desirable place to litigate the matter because of its central location with the country, and there are no apparent difficulties in managing this case as a class action. A class action is therefore the superior method of bringing this case, and the Court accordingly certifies the class pursuant to Rule 23(b(3. CONCLUSION The Court grants Plaintiff s motion for class certification [74]. Plaintiff is ordered to file an amended class definition, consistent with this order, within fourteen days. A status hearing is set for January 11, 2017 at 9:30 A.M. SO ORDERED. ENTERED: December 20, 2016 HON. RONALD A. GUZMÁN 10