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Targin Sign Systems, Inc. v. Preferred Chiropractic Center

January 21, 2010

TARGIN SIGN SYSTEMS, INC., ETC., PLAINTIFF,
v.
PREFERRED CHIROPRACTIC CENTER, LTD., DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Although the litigants in this putative class action, brought under the Telephone Consumer Protection Act ("Act," 47 U.S.C. §227(b)(3)), have waged battle on a number of fronts during the 10-1/2 months that have elapsed since it was removed from the Circuit Court of Cook County to this federal District Court, their most recent prolonged struggle has been over the hotly-contested motion of plaintiff Targin Sign Systems, Inc. ("Targin") for class certification. With counsel for defendant Preferred Chiropractic Center, Ltd. ("Preferred") having tendered its Response to Plaintiff's Motion for Class Certification on January 11, that issue--really a threshold issue, despite the length of time it has taken to reach this point--is ripe for resolution. And although a thick legal forest will have to be explored here before it is possible to emerge into the clearing of decision, the result of that exploration is a victory for Targin.

Both sides will certainly recall this Court's expression of shock at what was earlier revealed by Targin's supplementation in support of its class certification motion: Preferred's President Angie Skokos, who describes herself as Dr. Angie Skokos but who will be referred to here simply as "Skokos" (this Court's customary practice in speaking of individual parties--with no disrespect intended), had responded to Targin's first set of interrogatories with blatant lie after blatant lie--fully 19 times she swore under penalty of perjury to this identical language (of which Int. Ans. 2 is a prototype):

Defendant has no knowledge with respect to any faxing as it did not fax nor authorized any party to send out a fax on its behalf.

Twice Skokos made a shorter but equally false sworn statement (of which Int. Ans. 13 is a prototype):

Defendant was never involved in any fax transmissions identified in Interrogatory No. 2.

And she concluded with this similar lie (Int. Ans. 23):

Defendant is still investigating this matter but it believes that Macaw, Inc. Business To Business Solutions and/or Maxileads and their principals and/or agents are the responsible parties, as Defendant never authorized the sending [sic] facsimile on its behalf by any of these entities. It only authorized a bulk mailing via U.S. Mail.

Now it's one of the regrettable facts of life in the legal system that clients lie. As this Court recalls, the late great legal philosopher and Second Circuit Court of Appeals Judge Jerome Frank once said essentially (perhaps in his Courts on Trial):

Most lawsuits are won on a balance of the perjury.

But quite apart from this Court's disavowal of that level of cynicism, it believes that we are surely entitled to expect more and better from lawyers, whose profession creates duties and responsibilities to the legal system as well as to their clients. Sometimes those two sets of obligations create tensions, and the Rules of Professional Conduct address that difficult subject. So does Fed. R. Civ. P. ("Rule") 11(b), which deals with lawyers' written submissions in the course of litigation.

That makes the current submission by counsel for Preferred profoundly disturbing: It flouts the disclosures in Targin's supplementation, which Targin learned through discovery from Preferred itself, by advancing arguments that can best be characterized as bogus. Here's a transcript of an October 4, 2005 telephone message that Skokos conveyed to Business to Business Solutions ("Business to Business"), the asserted culprit to whom she has ascribed the responsibility for the fax solicitations at issue in this litigation:

Hello, good afternoon, this is Dr. Angie Skokos with Preferred Chiropractic Center.

I spoke with Ron Hillard a few weeks ago in reference to the faxing, uh, some information for my business.

I had actually misplaced the contract that he faxed me over and I just came across this here at home.

Um, if you can give me a call my number is 630-543- 0147. Uh if you let me know if I can still take part in, uh, with this, uh, faxing of these ads. 630-543-0147.

If I can I'll get it faxed out immediately.

Again, I was speaking with Ron ...


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