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R. Rudnick & Co. v. G.F. Protection

January 15, 2009


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiff R. Rudnick & Co. ("Rudnick") has filed suit against G.F. Protection, Inc. and ten John Does (collectively "GFP"), alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"); the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1, et seq. ("ICFA"); and the common-law tort of conversion. Rudnick's complaint stems from allegations that GFP engaged in the sending of unsolicited advertisement facsimiles ("faxes") to Rudnick and at least 40 other citizens of Illinois. GFP moves to dismiss the ICFA and conversion claims.

In reviewing a motion to dismiss based on Rule 12(b)(6), the court is to construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts, and drawing all possible inferences in the plaintiff's favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

I. ICFA Claim

To prevail under the ICFA, a party must ultimately show (1) an unfair or deceptive act or practice by defendant, (2) defendant's intent that plaintiff rely on or be treated unfairly by the act or practice, and (3) that the deception occurred in the course of conduct involving trade and commerce.

815 Ill. Comp. Stat. 505/2; Connick v. Suzuki Motor Co., Ltd., 675 N.E.2d 584, 593 (Ill. 1996). A practice need not be both unfair and deceptive; an otherwise unfair practice need not also be deceptive to be cognizable under the ICFA. See Sperry, 405 U.S. 244 n.5 (discussing claim that was "[not] deceptive [but] nevertheless unfair"); Elder v. Coronet Ins. Co., 558 N.E.2d 1312, 1316 (Ill. App. Ct. 1990) (discussing Sperry, 405 U.S. 233, and People ex rel. Fahner v. Hedrich, 438 N.E.2d 924 (Ill. App. Ct. 1982)). Whether a practice is "unfair" is determined by considering three factors:

a) whether the practice offends public policy; b) whether it is immoral, unethical, oppressive, or unscrupulous; and c) whether it causes substantial injury to consumers. Robinson v. Toyota Motor Credit Corp, 775 N.E.2d 951 (Ill. 2002). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." Id. at 961 (quotation omitted). GFP contends that the sending of unsolicited faxes does not constitute an unfair practice as understood under the ICFA. The court disagrees.

The practice of sending unsolicited advertisement faxes is generally prohibited under the TCPA, 47 U.S.C. § 227(b)(1)(C), and is a misdemeanor criminal offense under Illinois law. 720 Ill. Comp. Stat. 5/26-3(b). These federal and state statutes are evidence that the sending of unsolicited advertisement facsimiles is counter to public policy. See FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244--45 n.5 (1972); see also Centerline Equip. Corp. v. Banner Pers. Serv., Inc., 545 F. Supp. 2d 768, 780 (N.D. Ill. 2008) (holding same in unsolicited facsimile case).

At this stage of litigation the practice also appears to be oppressive as the term is understood under the ICFA. The recipients of unsolicited faxes have no way of preventing their reception before the fax is received, short of disconnecting their fax machine from the phone line. Nor do they have a remedy at hand after the fax is received. GFP argues that since it includes a removal number on the faxes, any suggestion of oppressiveness is deflected because there is a mechanism to avoid future unwanted faxes. This is unpersuasive given that the harm to the individual has already occurred. See Sadowski v. Med1 Online, LLC, No. 07 C 2973, 2008 WL 2224892 at *7 (N.D. Ill. May 27, 2008) (holding same in unsolicited fax case).

GFP also argues that there is no substantial injury to consumers here because each fax page is inexpensive, costing the consumer only a sheet of paper and some toner or ink. This argument misses the point. As the Centerline court observed, "Even very small individual harms can be considered substantial, if they are part of a practice that, in the aggregate, causes substantial losses to the public as a whole." 545 F. Supp. 2d at 780--81 (citing Hartigan v. Stianos, 475 N.E.2d 1024, 1029 (Ill. App. Ct. 1985)). In Stianos, customers were charged a few extra cents of sales tax. Although this was a minor amount as to any one individual, when considering the aggregate effect on the consuming public it could be substantial. 475 N.E.2d at 1029. The Stianos and Centerline analysis is apposite here; Rudnick is alleging that GFP not only sent three facsimiles to Rudnick, but also that this was part of a broader practice by GFP. Rudnick has sufficiently established the possibility of substantial injury.

Upon considering these three factors as a whole, GFP's alleged activity may be shown to be an unfair practice as understood under the ICFA.

GFP next argues that even if it has engaged in an unfair practice, the ICFA still does not apply because Rudnick has failed to allege that GFP intended for the faxes to be unfair to Rudnick. Though the word "intent" does not appear in Rudnick's complaint, it is clear that intent is alleged. Rudnick alleges that GFP is responsible for the sending of these faxes, Compl. ¶ 11, that this was done as part of a mass broadcasting of faxes, ¶ 16, and was done in the course of trade and commerce, ¶ 39. Rudnick also alleges that mass broadcasting is significantly cheaper than mass mailings, in part because of the cost-shifting effect of faxes. Id. ¶ 40. The ordinary consequence of an intentional action is generally deemed to have been intended. See Mid Am. Fire v. Smith, 441 N.E.2d 949, 951 (Ill. App. Ct. 1982). Rudnick has sufficiently pled that GFP intended to engage in the unfair practice described above, and to cause the resulting harm of lost paper and ink/toner to Rudnick.

GFP finally argues that the ICFA does not apply because the alleged fraudulent transaction did not occur primarily and substantially in Illinois, and points to Avery v. State Farm, 835 N.E.2d 801 (Ill. 2005) for support. Avery does not support the argument GFP is attempting to make. As Avery states, "a fraudulent transaction may be said to take place within a state if the circumstances relating to the transaction occur primarily and substantially within that state." Id. at 853. The faxes were received by consumers in Illinois, and thus to the extent that there was an unfair practice, it was felt within this state. That the faxes may have originated in another forum is of no consequence, for as the ICFA's name implies, the focus is on the harm to (and location of) the consumer.*fn1 See Bank One Milwaukee v. Sanchez, 783 N.E.2d 217, 220 (Ill. App. Ct. 2003) ("There is a clear mandate from the ...

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