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Hinman v. M and M Rental Center

April 7, 2008

ROBERT HINMAN AND ITALIA FOODS, INC., INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY-SITUATED PERSONS, PLAINTIFFS,
v.
M AND M RENTAL CENTER, INC., DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Robert Hinman and Italia Foods, Inc.,*fn1 filed a class action against M and M Rental Center, Inc., alleging that M and M violated the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. §227. Plaintiffs have moved to certify a class defined as All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendant, and (3) with respect to whom Defendant cannot provide evidence of prior express permission or invitation for the sending of such faxes.

Defendant opposes the class on the grounds that the plaintiffs lack Article III standing to bring the class claims and cannot establish any of the requirements set forth in Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. For the reasons discussed below, I grant the motion and certify a class with a slightly revised definition.

I.

M and M offers goods and services related to corporate event planning. On at least five identified occasions during the putative class period, plaintiffs allege M and M hired a company called Xpedite (which later became Premier Global Services) to broadcast one-page fax "flyers" to companies whose fax numbers were on a list of "leads" M and M had purchased several years earlier from a company called Corporate Marketing, Inc., ("CMI"). Plaintiffs each received at least one of these fax "flyers," which they allege violate the TCPA.

II.

Rule 23(a) provides for certification of a class when (1) the class is so numerous as to make joinder of all members impracticable, (2) there are common questions of law or fact, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately represent the class. Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir. 1998). In addition to these prerequisites, a proposed class must also qualify under any one of the three subsections of Rule 23(b). This is a class action for damages under Rule 23(b)(3), which provides that class certification is appropriate where, in addition to the factors above, (1) common issues of law and fact predominate, and (2) a class action is superior to other forms of adjudication. Ringswald v. County of DuPage, 196 F.R.D. 509, 511 (N.D. Ill. 2000). The party seeking certification bears the burden of demonstrating that class certification is appropriate. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584 (7th Cir. 1993).

For the purpose of evaluating a certification motion, I assess certification without regard to the merits, Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir. 1997); Hyderi v. Washington Mutual Bank, FA, 235 F.R.D. 390, 395 (N.D.Ill.2006). Nonetheless, I may probe beyond the pleadings to make whatever factual or legal inquiries are necessary to determine whether class treatment is appropriate. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir. 2001).

The TCPA prohibits the use of any telephone facsimile machine, computer or other device to send an "unsolicited advertisement." 47 U.S.C. §227(b)(1)(C). As I previously held in this case, "to prevail under this statute, a plaintiff must show that the defendant (1) used a telephone facsimile machine, computer or other device to send a facsimile; (2) the facsimile was unsolicited; and (3) the facsimile constituted an advertisement." Eclipse Mfg. Co. v. M and M Rental Center, Inc., 521 F.Supp.2d 739, 745 (N.D.Ill. 2007).

A. Standing

I previously found that both plaintiffs have standing as to their individual claims. Eclipse Mfg. Co. v. M and M Rental Center, Inc., 521 F.Supp.2d 739, 744-45 (N.D.Ill. 2007). In the class action context, Article III requires that a named plaintiff "establish a nexus between his individual claim and the claim of the putative class," Moore v. Fidelity Financial Services, Inc., No. 94 C 2558, 96 C 4894, 1998 WL 210941, at *3 (N.D. Ill. March 16, 1998)(Gettleman, J.), but it does not require that the class representative's injury be based on exactly the same fact pattern as every class member. Id. (certifying class of plaintiffs alleging, inter alia, breach of contract, even though individual and class claims arose out of different contracts). Because M and M sent fax transmissions to the class under the same general circumstances, those transmissions--if found to violate the TCPA--would result in the same basic injury to all class members. Therefore, plaintiffs have Article III standing to pursue the class claims.

The authorities M and M cites do not compel a contrary result. As the Seventh Circuit has taught, the Supreme Court held in General Telephone Co. v. Falcon 457 U.S. 147 (1982) that "similarity of claims and situations must be demonstrated rather than assumed." Szabo at 677. Plaintiffs here have done more than assume similarity of claims and situations; they have offered evidence that M and M followed a similar pattern of conduct and have alleged a common injury arising out of that conduct.

M and M's invocation of O'Shea v. Littleton, 414 U.S. 488 (1974) and Harriston v. Chicago Trib. Co., 992 F.2d 697 (7th Cir. 1993) is equally unavailing. Plaintiffs claim more than merely an "abstract injury" as the O'Shea court found insufficient, and, unlike the Harriston plaintiffs, they are plainly members of the class ...


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