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Green v. Anthony Clark International Insurance Brokers

August 17, 2009

ROBERT A. GREEN, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY-SITUATED PERSONS, PLAINTIFF,
v.
ANTHONY CLARK INTERNATIONAL INSURANCE BROKERS, LTD. AND JOHN PODORIESZACH, DEFENDANTS



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

MEMORANDUM OPINION AND ORDER

Defendants Anthony Clark International Insurance Brokers, Ltd. ("Anthony Clark Brokers") and John Podorieszach have moved to dismiss the claims of plaintiff Robert Green. For the reasons stated below, the Court denies the motion in part.

Background

Green alleges that on May 31, 2007, the defendants sent him an unsolicited message via his facsimile machine. The message read as follows:

Dear Bob, Re: Seeking Acquisition/Merger - Property & Casualty Insurance Agencies Our firm Sierra Consulting has been retained by our confidential client to seek reputable and well-run General Insurance Agencies (Commercial and/or Personal Lines), that may be willing to sell or merge their business(s). Since we are acting on behalf of the buyer, there are no charges or finders fees which are payable by you, the vendor.

Our client is a full service international general insurance brokerage firm offering a full spectrum of insurance products. They are seeking general insurance agencies having commission/fee revenues of $1 million and above and or [sic] independent contractors that have a minimum of $100,000 in commission/fees. The purchase price is dependent on a vast array of criteria. In the past, our client has paid up to a 2X multiple on commission revenue and up to a 90% cash down payment. Should you be interested in further discussing the possibility of selling or merging your agency/business, please contact John or Peter, Acquisitions Department, on our direct toll free line at: 1-(877) 378-8811 or you may email me at: johnpodo@shawcable.com.

All correspondence or communication will be held in the strictest confidence. Sincerely, Sierra Consultants Mergers and Acquisitions If you do not wish to receive further communication from our firm, please fax this letter back to (707) 796-7198, Green alleges that the defendants' sending of the fax violated the federal Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act and also constituted conversion under Illinois common law. He has sued on behalf of a class of similarly situated persons. Green filed his suit in state court, and Anthony Clark Brokers removed it to this Court based on federal question jurisdiction.

Discussion

To survive a motion to dismiss for failure to state a claim, a plaintiff must make enough factual allegations to raise a right to relief above a "speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007). In deciding a motion to dismiss, the Court accepts the complaint's factual allegations as true and considers those allegations in the light most favorable to the plaintiff. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007); Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

1. Telephone Consumer Protection Act

In count one of his complaint, Green alleges that under Podorieszach's authorization and direction, Anthony Clark Brokers transmitted an unsolicited facsimile advertisement in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227. Under the TCPA, it is unlawful to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless--

(i) The unsolicited advertisement is from a sender with an established business relationship with the recipient;

(ii) the sender obtained the number of the telephone facsimile machine through --

(I) the voluntary communication of such number, within the context of such established business relationship, from the recipient ...


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