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., represent a class of individuals in an action against M and M Rental Center, Inc., in which plaintiffs claim that M and M violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §227, by sending them one or more unsolicited advertisements by fax. The plaintiff class, as defined in my order of April 7, 2008, Hinman v. M and M Rental Center, Inc., 545 F.Supp.2d 802, 808 (N.D. Ill. 2008), is composed of:
All persons who, on or after four years prior to the filing of this action, were sent, without permission, telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of defendant.
Now before me are the parties' cross-motions for summary judgment. For the reasons discussed below, both motions are granted in part and denied in part.
Unless otherwise noted, the following facts are undisputed.*fn1 Defendant is a corporation that provides goods and services for special events. In August of 1997, defendant's president, Michael Berk, bought a marketing leads list (the "Leads List") from Corporate Marketing, Inc., ("CMI") for the purpose of exposing the companies on the list to defendant and defendant's products and services.
The Leads List contains certain contact information, including a company name, a contact name, and a fax number, for roughly 5000 companies, including the named plaintiffs.*fn2 CMI had selected these companies for inclusion on the Leads List because the companies were likely to spend more than $5000 a year on corporate parties, meetings, and banquets.
CMI compiled the Leads List using information it obtained from various sources over the course of several years. CMI's policy was to contact every company on the lists it sold to verify company information. CMI employed compilers to call each company on a particular list to verify (or obtain) the company's contact information, including its fax number. If a company contacted by a CMI compiler refused to confirm (or provide) a fax number, CMI's policy was to remove that company from the list. Kevin Taylor, CMI's president, stated in his deposition that if a company contact asked a CMI compiler why CMI was collecting the company's fax number, the compiler would respond, "We're a database company, for fax marketing purposes, we want to send you information about goods and services."*fn3 Taylor estimates that twenty-five to thirty-five percent of the people called by CMI compilers asked why CMI was collecting fax numbers.
CMI obtained some of the information on the Leads List from Dun and Bradstreet ("D&B"), which itself collected corporate information through various means. Specifically, D&B conducted phone interviews, purchased company information from third party data compilers, and collected information that companies voluntarily submitted either on D&B's website or in response to D&B mail surveys. John Nicodemo, a D&B employee familiar with D&B's data collections process, stated that if a "business subject" contacted by phone asked why company information was being sought, the D&B interviewer would answer that D&B was updating their files. If the business subject pressed the D&B interviewer for further information, the interviewer "would respond typically with a response that said a business has made an inquiry about you with regard to perhaps insurance or financial need." Nicodemo also stated that, "The response would be that we are trying to make our profile on your business as complete as possible for other businesses that may want to do business with you."
At least as of June 23, 2005, the Leads List included the company names, fax numbers and contact names (Robert T. Hinman and Phil Carabetta, respectively) of Eclipse Manufacturing, Co., and Italia Foods, Inc.
Approximately four years after purchasing the Leads List, defendant used the services of Xpedite Systems ("Xpedite," now a division of Premier Global Services), a fax broadcaster, to send "fax blasts" to the companies on the Leads List. On five occasions between June of 2002 and June of 2006, defendant used Xpedite to send five faxes (hereinafter, "Fax #1," "Fax #2," etc., and collectively, the "Five Faxes") to the fax numbers on the Leads List. The parties have been able to obtain some information, in varying degrees of completeness, about the Five Faxes, based primarily on Xpedite's business records. These records have allowed the parties to piece together certain information about the Five Faxes, as discussed in more detail below. In addition, defendant produced samples of various flyers it created, some of which were or may have been sent by fax. Naturally, the parties dispute the significance of the available information.
To broadcast faxes using Xpedite, an Xpedite client uploads to Xpedite's system one or more lists containing fax numbers. The client then selects among the uploaded lists, which can be saved on the system for multiple uses, to identify the desired recipients of a particular fax. A "directory of lists" for each client reflects the different lists that that client has uploaded and indicates when each list was last modified. As of September of 2006, the Leads List appeared in the defendant's directory of lists with a last modification date of June 23, 2005.
Each time Xpedite is used to blast a recipient list, the system automatically generates and tracks certain information. For example, the system tracks the transmission and delivery status of each message initiated. Xpedite then uses this information to create a delivery report for each blast (or "job"). The delivery reports can be either summary or detailed, depending on the client's request for the particular job.
A summary delivery report identifies the recipient list used for the job and provides information about the total number of faxes requested, the number of faxes "sent," the number of "errors," and the number of "cancelled" faxes. Summary reports do not contain an itemized account of which fax numbers correspond to "sent" faxes and which correspond to "errors" or "cancelled" faxes. Accordingly, it is not possible to identify, based on an Xpedite summary report, the individual fax numbers to which a particular transmission was "sent."
By contrast, a detailed report identifies each number called and shows the disposition of each fax for which transmission was requested. Specifically, a detailed report shows each number on a particular list and indicates whether the transmission initiated to that number was "sent," or, alternatively, whether the line was busy, there was no answer, or the transmission failed for some other reason.
The Xpedite system stores the delivery report, along with other information relating to each job, for a few days, then rolls the information off onto magnetic tapes. Thereafter, the Xpedite job retrieval system is inconsistent. Some tapes are kept and archived, while others are recycled or reused. If information relating to a particular job was rolled off onto a tape that was archived and that can later be identified, it is possible, using the job number, to recover the delivery report for that job, as well as the content of the message transmitted (i.e., a copy of the ...