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CE Design Ltd. v. Cy's Crabhouse North

July 27, 2009


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


CE Design LTD. has sued Cy's Crabhouse North, Inc., and Cy's Crabhouse & Seafood Grill, Inc. (collectively, Cy's Crabhouse), alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(C). Plaintiff has moved to certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3). For the reasons stated below, the Court grants plaintiffs' motion.


The Court takes the following facts from plaintiff's complaint and evidence offered by both plaintiff and defendants during the briefing of this motion, including depositions and expert reports.

Sometime in 2005, Michael Arab, a manager at Cy's Crabhouse, received a fax from an out-of-state company whose name he could not remember, offering to send advertising faxes to local businesses on behalf of Cy's Crabhouse. Arab ordered fax advertisements, but he could not recall how many faxes he ordered.

In November 2005, CE Design received a fax advertisement for Cy's Crabhouse. Business to Business Solutions (B2B), a business based in New York and run by Caroline Abraham (Abraham), worked for Macaw (also known as Maxileads), a Romanian company, to send fax advertisements in the United States. B2B set up ten to fifty phone lines, received and processed payments, edited proposed advertisements, and maintained some records for Macaw. One of the databases B2B maintained for Macaw was a database named "Fax Clients," in which it recorded information regarding Macaw's clients. According to Abraham, the database records indicate that Cy's Crabhouse purchased two sets of 5,000 fax advertisements for a total of $328 on November 1, 2005.

Joel Abraham (Joel), Caroline Abraham's son, set up B2B's computer network-which included several computers including personal computers-sometime before 2005. Occasionally, Joel backed up the data on the network hard drives. Pursuant to a discovery request, Abraham asked Joel to retrieve any records stored on B2B's computer system containing the name Cy's within a specified date-range. Joel searched the back up disks corresponding to that time period and found a few files with the name Cy in the title. He decompressed the files and burned them onto another CD in readable format.

Plaintiff's expert Robert Biggerstaff, a retired engineer with experience in designing databases and computer-based fax programs, reviewed the data extracted by Joel. Biggerstaff concluded that the disk contained files that were consistent with files found on a computer running HylaFAX-a commercial open source computer- based fax broadcasting application for Linux. He concluded that two archives labeled Cy "demonstrate[ ] that a combined total of 7,295 error-free fax transmissions of the Cy's Crabhouse fax were delivered in the November 1, 2005 and November 9, 2005 fax broadcasts." Mot. Ex. E at 4.

Defendant's expert David Canefield, who has over two decades of experience in computer programing and telecommunications, concluded that the HylaFAX program was prone to errors which could lead to false successful fax transmission messages. Citing to complaints of "false positives" by HylaFAX users, Canefield stated that errors in configuration could result in false positives.


The Court may certify a case as a class action if the party seeking certification demonstrates that it has met all the requirements of Rule 23(a) and one of the requirements of 23(b). Under Rule 23(a), the party seeking certification must prove that the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the proposed class; the class representative's claims are typical of the claims of the class; and the representative will fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(a)(1)-(4). In this case, CE Design seeks certification under Rule 23(b)(3). To succeed, in addition to the preceding requirements, it must show that "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 demonstrating that certification is appropriate."

Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). The Court need not rely solely on the allegations in plaintiff's complaint in assessing whether to certify a class but instead "should make whatever factual and legal inquiries are required under Rule 23." ...

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