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PALDO SIGN AND DISPLAY CO. v. TOPSAIL SPORTSWEAR

November 29, 2010

PALDO SIGN AND DISPLAY CO., PLAINTIFF,
v.
TOPSAIL SPORTSWEAR, INC., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Paldo Sign and Display Co. has sued Topsail Sportswear, Inc., alleging that it violated of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(C). Paldo Sign has moved to certify the case a class action pursuant to Federal Rule of Civil Procedure 23(b)(3). For the reasons stated below, the Court grants Paldo Sign's motion.

Facts

The Court takes the following facts from the parties' submissions in connection with the motion to certify.

Topsail, which is based on North Carolina, provides design services to the embroidery industry and offers embroidered products to end users of apparel. The company's vice president, with the approval of his brother, who is the majority owner and who makes most of the company's advertising decisions, purchased a list of companies and their fax numbers from an entity called InfoUSA.

Topsail personnel created advertisements, which the company then sent via fax broadcasting to fax numbers that came from the list it had purchased from InfoUSA. Before sending the fax advertisements, Topsail did not do any checking to see if any of the entities had a prior business relationship with Topsail, nor did it seek the recipients' consent.

Robert Biggerstaff, a consultant retained by Paldo Sign's counsel, has reviewed the fax lists that Topsail obtained from InfoUSA and telephone records regarding Topsail obtained from AT&T. He reports that from January 5, 2006 through September 24, 2007, Topsail successfully faxed a total of 31,101 advertisements to 10,530 unique fax numbers that were contained in the InfoUSA lists. Paldo Sign itself received four faxed advertisements from Topsail.

Discussion

A court may certify a case as a class action if the party seeking certification meets all the requirements of Rule 23(a) and one of the requirements of 23(b). Under Rule 23(a), the party seeking certification must demonstrate 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, Paldo Sign seeks certification under Rule 23(b)(3). To succeed, in addition to the preceding requirements, Paldo Sign 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).

Paldo Sign 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 Paldo Sign's complaint in assessing whether to certify a class but instead "should make whatever factual and legal inquiries are required under Rule 23." Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76 (7th Cir. 2001).

1. Uncontested Rule 23 requirements

Topsail does not dispute that Paldo Sign has made the necessary showing of numerosity and adequacy of representation. Based on the material submitted to the Court, there are more than 10,000 members of the proposed class, which is more than sufficient. The Court also finds that Paldo Sign, which received multiple faxes from Topsail, is an adequate class ...


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