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Sadowski v. Med1Online

May 27, 2008


The opinion of the court was delivered by: Marvin E. Aspen United States District Judge

Judge Marvin E. Aspen


Presently before us are Dr. Francis Sadowski's ("Plaintiff") Motion for Class Certification and Med1Online, LLC's ("Defendant") Motion to Dismiss. For the reasons set forth below, we grant Plaintiff's Motion for Class Certification and deny Defendant's Motion to Dismiss.


On March 31, 2008, we granted Plaintiff leave to filed his Second Amended Complaint. Plaintiff's Second Amended Complaint contains virtually identical allegations to his previous two complaints. Specifically, he alleges that Defendant and other unknown John Does 1-10 were responsible for sending two identical unsolicited faxes advertising Defendant's products, despite no prior relationship with Defendant. (2d Am. Compl. ¶¶ 4, 5, 9, 10, 13). In addition, he claims that Defendant has transmitted similar faxes to at least 40 other people in Illinois. (Id. ¶ 16). His complaint includes three counts: (1) violation of the Telephone and Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") ("Count I")), (2) violation of the Illinois Consumer Fraud Act, 815 ILCS 505/2 ("ICFA") ("Count II"), and (3) a state law conversion claim ("Count III").

Despite the fact that we denied Plaintiff's Preliminary Motion for Class Certification on February 20, 2008, Plaintiff now seeks class certification based upon the amended class definition in his Second Amended Complaint. In addition, on March 31, 2008, we permitted Defendant to file its Motion to Dismiss Counts II and III of the Second Amended Complaint for failure to state a claim.


As indicated above, this Opinion decides two motions: (A) Plaintiff's Motion for Class Certification and (B) Defendant's Motion to Dismiss. We address each below.

A. Plaintiff's Motion for Class Certification

Pursuant to Rule 23(a), a class may be certified "only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (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 protect the interests of the class." Fed. R. Civ. P. 23(a). If the numerosity, commonality, typicality, and adequacy requirements are satisfied, the plaintiff must also demonstrate that the proposed class qualifies under at least one of the three subsections of Rule 23(b). Fed. R. Civ. P. 23(b); Cavin v. Home Loan Ctr., Inc., 236 F.R.D. 387, 391 (N.D. Ill. 2006). Here, Plaintiff seeks certification under Rule 23(b)(3), which permits class actions where "questions of law or fact common to the members of the class predominate over any questions affecting individual members, and . . . 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).

Plaintiff bears the burden of showing that the proposed class meets the requirements for certification and that the "class is indeed identifiable as a class." Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); see also Retired Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 596 (7th Cir. 1993); Hernandez v. Midland Credit Mgmt., Inc., 236 F.R.D. 406, 410 (N.D. Ill. 2006). In evaluating a motion for class certification, we accept as true all allegations made in support of certification and do not examine the merits of the case. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53 (1974); Retired Chi. Police Ass'n,7 F.3d at 598. In addition, we retain broad discretion in determining whether class certification is appropriate given the particular facts of the case. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998); Cavin, 236 F.R.D. at 391; Murray v. New Cingular Wireless Servs., Inc., 232 F.R.D. 295, 298 (N.D. Ill. 2005).

On February 20, 2008, we held that Plaintiff's class definition*fn1 was not sufficiently identifiable because it required us to investigate the relationship between Defendant and each potential class member. See Sadowski v. Med1 Online, LLC, No. 07 C 29783, 2008 WL 489360, at *3 (N.D. Ill. Feb. 20, 2008). Subsequently, Plaintiff amended his class definition to include:

"(a) all persons with Illinois fax numbers; (b) who, during October, 2006 (c) were sent faxes in the form attached as Exhibits A-B by or on behalf of defendant Med 1 Online promoting its goods or services for sale."

(Class Cert. Mot. at 1). Thus, Plaintiff has eliminated the fourth prong from its previous definition in hopes that this will create a sufficiently identifiable class to permit class certification.

Defendant now argues that Plaintiff's motion for class certification should be denied because his class definition fails to establish a legal claim and he has not shown the Rule 23 requirements of numerosity, commonality, and typicality.*fn2

1. Class Definition

Defendant argues that because the amended class definition does not reference a lack of business relationship with Defendant it fails to establish a legal claim. Defendant claims that "Plaintiff's proposed amended class definition must include some mention of each element of the legal claim relied upon in order to establish a proper class definition that meets the mandatory tests to certify a class." (Class Cert. Resp. at 3). We disagree. While we acknowledge that a fax must be "unsolicited" in order to recover under the TCPA, there is no requirement in Rule 23 that Plaintiff's class must be defined in terms of the statute allegedly violated. See Fed. R. Civ. P. 23(a), (b). To the contrary, as we held in our February 20, 2008 opinion, defining a class in terms of the elements of a statute would be the "equivalent to deciding the merits of class members' claims," and thus impermissible. Foreman v. Pra III, LLC, No. 05 C 3372, 2007 WL 704478, at *6 (N.D. Ill. Mar. 5, 2007). So long as Plaintiff can establish the requirements of Rule 23, as we discuss below, then class certification is proper.

2. Rule 23 ...

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