The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Ira Holtzman filed a class action law suit against defendant Gregory P. Turza, in the Circuit Court of Cook County, Chancery Division, on November 7, 2008, claiming that in November 2007 he received an unsolicited fax advertisement sent by defendant and that the same advertisement was faxed to numerous other recipients. The complaint alleged violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, and a state law conversion claim. The case was removed to this court on April 9, 2008. Plaintiff filed an amended complaint in this court on June 27, 2008. The new complaint eliminated the state law claims, asserting the TCPA as the sole basis for plaintiff's individual and class claims.
Plaintiff has moved under Fed. R. Civ. P. 23 to certify a class defined as:
All persons who: (1) during the period September 2006 through March 2008; (2) were sent a "Daily Plan-It" fax identifying "Gregory P. Turza" and his telephone number (847-647-0200) or e-mail address (firstname.lastname@example.org); (3) owned or paid for some portion of the machine to which the fax was sent; and (4) had not previously consented to receiving such advertisements.
Defendant opposes class certification. For the reasons described below, the court grants plaintiff's motion.
Defendant is an attorney who operates a law practice in Skokie, Illinois. In 2007, he hired Top of Mind Solutions, LLC ("Top of Mind"), a third party advertiser, to distribute a one-page fax to a list of his contacts. The contact list included a combination of fax numbers defendant purchased from the Illinois CPA Society, and numbers he obtained from clients, advisors, business acquaintances, and people who attended various seminars he taught.
Top of Mind formatted the fax, headlined "The Daily Plan-It," to resemble a newsletter that contained an editorial article offering advice about using laptop computers for business purposes. Approximately 20 to 25 percent of the fax bears the defendant's name, contact information, areas of legal practice, logo, and a photo of the building in which defendant's office is located.*fn2
Top of Mind contracted with MessageVision ("MessageVision"), a fax broadcasting service, to fax the newsletters using defendant's contact list. MessageVision used a proprietory fax software program that was internally developed by the company.
Plaintiff's expert, Robert Biggerstaff ("Biggerstaff"), is a retired engineer with experience in the design and evaluation of computer databases and networks, including computer-based facsimile systems. Biggerstaff reviewed data on two separate CDs, one provided by Top of Mind and one provided by MessageVision. The latter CD was produced by Michael Richard ("Richard"), Chief Financial Officer of VillageEDocs, the holding company for Message Vision. Both CDs contained data listing the targeted recipients of the fax and contained identical data for a common time frame. One of the CDs -- it is unclear from the record which one -- also contained data for an additional period of time. Biggerstaff found that the CDs contained records consistent with records produced by a typical computer-based fax broadcasting system, but noted that he was unfamiliar with the specific software MessageVision used. Nonetheless, he concluded based on the data on the CDs that 11,945 fax transmissions were sent. Of these, 8,630 were successfully transmitted to 221 unique fax numbers, and 3,315 were unsuccessfully sent.
Defendant's expert, David Canefield ("Canefield"), has twenty years of experience in computer programming and telecommunications. He opines that it cannot be determined whether MessageVision's software worked properly in sending the faxes because there is a complete void of information, reports, evaluations or third-party reviews of the operating and reporting systems of the software.
Plaintiff alleges that on or about November 17, 2007, defendant sent him one of these "Daily Plan-It" faxes without his prior express invitation or permission.
Fed. R. Civ. P. 23, which governs class action suits, requires a two-step analysis to determine if class certification is appropriate. First, plaintiffs must satisfy all four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). These elements are a prerequisite to certification, and failure to meet any one of them precludes certification of a class. Second, the action must also satisfy one of the conditions of Rule 23(b). Joncek v. Local 714 Int'l Teamsters Health and Welfare Fund, 1999 WL 755051, *2 (N.D. Ill. Sept. 3, 1999). Specific to the instant case, the court may certify a class under Rule 23(b)(3) if the "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
When evaluating whether a party has met its burden of proving that a class should be certified, this court should not consider the merits of the underlying claim, Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 166, 94 S.Ct. 2140, 40 L.Ed. 2d 732 (1974), but it is appropriate to "probe behind the pleadings." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 ...