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Ce Design Ltd., An Illinois Corporation, Individually and As the v. King Architectural Metals

December 13, 2010


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Plaintiff CE Design Ltd. ("CE Design") sued King Architectural Metals, Inc. ("King"), alleging that King violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., by sending advertisements to its fax machine without its consent. CE Design seeks to bring the suit as a class action on behalf of:

[a]ll persons who, during the period January 30, 2009 to May 18, 2009, were sent, without prior express permission or an established business relationship, a telephone facsimile message advertising the commercial availability of Defendant's property, goods, or services.

For the reasons discussed below, the motion for certification is granted, subject to the modification of the class definition explained herein.

I. King is a manufacturer and distributor of metal building components. In 2009, King decided to begin advertising its products by sending faxes to current and prospective customers. To this end, King contracted with two fax broadcasting companies, ProFax and Westfax. King provided the companies with distribution lists consisting of the fax numbers to whom the advertisements were to be sent. These numbers were taken from several of King's databases. Also included on the lists were fax numbers of potential customers purchased from third parties such as Dun & Bradstreet.

The companies began sending the faxes on January 30, 2009. After receiving notice of the instant suit, on March 8, 2009, King limited the distribution list to its existing customers; and on May 18, 2009, King discontinued sending the faxes altogether. According to CE Design's expert, Robert Biggerstaff, during the period from January 2009 to May 2009, 143,257 unique fax numbers received a total of 669,917 successful fax transmissions.

II. Under Fed. R. Civ. P. 23, class certification is appropriate if CE Design can show: "(1) that the class is so numerous that joinder of all members is impracticable; (2) that there are questions of law or fact common to the class; (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) that the representative parties will fairly and adequately protect the interests of the class." Williams v. Chartwell Financial Services, Ltd., 204 F.3d 748, 760 (7th Cir. 2000). In addition, a proposed class must satisfy at least one of the categories of Rule 23(b). See, e.g., Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir. 2002). In this case, CE Design contends that the proposed class meets Rule 23(b)(3)'s requirement that questions of law or fact common to class members predominate over questions affecting individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).

Rule 23(a): Typicality & Adequacy

There is no dispute as to whether the proposed class meets the first two requirements of Rule 23(a): the class is so numerous that joinder of all members would be impracticable; and the class shares common questions of law and fact because the class members' claims arise out of a common nucleus of operative fact. See, e.g., Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) ("A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).").

However, King argues that the class fails to meet Rule 23(a)'s typicality and adequacy requirements. According to King, CE Design's claim is not typical of the class, and therefore cannot adequately represent the class, because its claim is vulnerable to unique defenses and objections. See, e.g., Pezl v. Amore Mio, Inc., 259 F.R.D. 344, 348 n.8 (N.D. Ill. 2009) (presence of defenses unique to the named plaintiff undermines adequacy of representation). Specifically, King contends that CE Design's claim fails because it consented to receive the faxes in question. King does not claim to have received express permission to send the faxes directly from CE Design. Rather, King claims that CE Design consented by posting its fax number on its website (along with the invitation, "Call Us"); and by signing a form authorizing the publication of its fax number in the "Blue Book," a regionalized directory similar to the Yellow Pages that lists civil engineering firms and other commercial construction professionals. King points out that in placing its advertisement in the Blue Book, CE Design signed a form containing the following provision: "By supplying The Blue Book with your fax and e-mail address, you agree to have The Blue Book and users of The Blue Book services communicate with you via fax or e-mail." King argues that since CE Design consented to receiving the faxes, and since the TCPA applies only to faxes sent without consent, CE Design's claim fails and it therefore cannot represent other class members' claims.

The assumption on which this argument is founded -- that CE Design consented to receiving King's faxes -- is mistaken. Courts and other authorities interpreting the TCPA have stated that express permission must be obtained from the intended recipient, and that express permission requires that the party agree not simply to receive faxes but to receive faxed advertisements from the plaintiff. As the FCC has explained: fax numbers are published and distributed for a variety of reasons, all of which are usually connected to the fax machine owner's business or other personal and private interests. The record shows that they are not distributed for other companies' advertising purposes. Thus, a company wishing to fax ads to consumers whose numbers are listed in a trade publication or directory must first obtain the express permission of those consumers. Express permission to receive a faxed ad requires that the consumer understand that by providing a fax number, he or she is agreeing to receive faxed advertisements.

In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R. 14014, 14129 (F.C.C.)-14130 (F.C.C.), 2003 WL 21517853,), 2003 WL 21517853 (2003); see also Hinman v. M and M Rental Center, Inc., 596 F. Supp. 2d 1152, 1161-62 (N.D. Ill. 2009) ("[E]vidence that plaintiffs published or otherwise distributed their fax numbers to particular recipients, such as clients and vendors, in the course of conducting their business does not amount to consent.").

By agreeing to the Blue Book's Terms and Conditions, CE Design may have consented to receiving faxes, but it did not expressly consent to receiving faxed advertisements. As CE Design points out, businesses publish their fax numbers in the Blue Book for the purpose of advertising their own services, not in order to solicit advertisements from others. See Reply at 6. It is equally evident that CE Design did not expressly consent to receiving fax advertisements by displaying its fax number on its website.

The cases to which King looks for support, Travel 100 Group, Inc. v. Mediterranean Shipping Co. (USA) Inc., 889 N.E.2d 781 (Ill. App. Ct. 2008), and Landsman & Funk, P.C. v. Lorman Business Ctr., Inc., No. 08-cv-481-bbc, 2009 WL 602019 (W.D. Wisc. Mar. 9, 2009), are distinguishable. In both cases, the plaintiffs expressed their consent to receive fax advertisements in clear and distinct terms. Thus, in Travel 100, the court noted that "Travel 100 went beyond simply agreeing to the inclusion of its contact information in [an industry] database." Travel 100, 889 N.E.2d at 798. Rather, "[v]arious representatives of Travel 100 submitted the agency's contact information upon being told that [its information would be released] to any industry supplier that may wish to use Travel 100's services." Id. (quotation marks omitted). Moreover, a Travel 100 employee completed and returned a questionnaire containing a provision stating that "Travel 100's contact information assures that suppliers will direct relevant promotions and . . . trip information to our participants." Id. Similarly, in Landsman, the plaintiff received faxes after signing a seminar ...

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