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G.M. Sign, Inc v. Brink's Mfg. Co

January 25, 2011


The opinion of the court was delivered by: Hon. Amy J. St. Eve


AMY J. ST. EVE, District Court Judge:

On August 7, 2009, Plaintiff G.M. Sign, Inc., filed suit against Defendant Brink's Manufacturing Company, purporting to bring a class action on account of Defendant's alleged violation of the Telephone Consumer Protection Act ("TCPA" or "the Act"). (R. 1 at 6-15.) Brink's removed the case to this Court on September 4, 2009. On September 3, 2010, Plaintiff filed its amended motion for class certification. For the reasons explained below, the Court denies the motion.


Plaintiff contends that Defendant sent it a faxed form advertisement without its prior express invitation or permission and, second, that that fax did not advise the recipient how to opt out of receiving future faxes. (R. 46 at 2.) According to Plaintiff, this action constituted a violation of the TCPA, which prohibits the use of "any telephone facsimile machine . . . to send, to a telephone facsimile machine, an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C). The Act provides an exception if "the unsolicited advertisement is from a sender with an established business relationship with the recipient; the sender obtained the number of the telephone facsimile machine through the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, . . . and the unsolicited advertisement contains [an opt-out notice]." Id. G.M. Sign alleges, however, that there is no business relationship "of any sort" between it and Defendant, and submits further that Defendant did not contact Plaintiff to obtain its express authorization or permission to send an advertising fax. (R. 46 at 6.) Furthermore, Plaintiff asserts in its brief, though not in its Complaint, that the fax it received did not include the requisite opt-out notice. (R. 46 at 4.)

A. Evidence Regarding Prior Authorization

Defendant, however, has introduced evidence that it only sent faxes to (1) existing customers and (2) those prospective customers that had expressly agreed to receive Brink's product information in that fashion. (R. 55-1 at 2-4, 8-9, 15-16, 18, 20, 22.) More specifically, Brink's submits multiple affidavits to the effect that the company created an electronic database, known as "ACT," which included contact information for the company's actual and prospective customers. (Id.) This evidence provides that Brink's gathered information regarding the company's existing customers during the course of the relevant business relationships. (Id.) Furthermore, Defendant obtained information on prospective customers through phone disks and public sources like the Yellow Pages, although neither source generally contained fax numbers. (Id.) The evidence further supports that Brink's instead obtained those fax numbers by calling prospective customers, asking them whether they would be interested in receiving information about Defendant's products, and, if so, asking them for their fax numbers. (Id.) If any prospective customer declined Defendant's offer to send them information, Brink's avers that it would "immediately remove that company from the ACT database." (Id.) Similarly, "[i]f the customer did not agree to receive information from Brink's by fax, in the unlikely event that [Brink's] had their fax number[,] [it] would remove it from the ACT database." (Id.)

Finally, Defendant has introduced evidence that Plaintiff not only expressed interest in receiving information on its products, but voluntarily provided Defendant with its fax number. (Id. at 2-4.) To counter this evidence, Plaintiff relies on the deposition testimony of Mr. George Matiasek, G.M. Sign's president and head of sales, who represented that he could not recall having received any kind of communication from Brink's.*fn1 (R. 47-6 at 6.) Mr. Matiasek also acknowledged, however, that, even if he had received a phone call, he would probably not remember at this later time. (Id.) Plaintiff further relies on the deposition testimony of Mr. David Peterson, president of Brink's, who stated that, to his knowledge, G.M. Sign never contacted Brink's for any reason. (R. 47-1 at 11.) Finally, Plaintiff cites the deposition testimony of Ms. Beverly Kelly, Plaintiff's secretary treasurer, who testified that she had not heard of Brink's before Plaintiff filed the lawsuit and that, as far as she was aware, G.M. Sign had not contacted Brink's before it sent the fax. (R. 47-3 at 8, 11.)

B. Proposed Class

G.M. Sign seeks to certify a class comprised of those who allegedly received junk faxes from Defendant under Federal Rules of Civil Procedure 23(a), (b)(3), and (g). (R. 45.) A disparity exists, however, between the class definition it proffers in its complaint, on the one hand, and in its memorandum in support of its amended motion for class certification, on the other. The former definition is as follows:

All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendant, (3) with respect to whom Defendant did not have prior express permission or invitation for the sending of such faxes and (4) with whom Defendant did not have an established business relationship.

(R. 1 at 8, ¶ 16.)

In its subsequent memorandum in support of its motion, Plaintiff proposes the following class definition:

All persons who (1) at any time during the period November 1, 2005 through February 28, 2006, (2) were sent one or more telephone facsimile messages of material advertising the commercial availability of Defendant's property, goods, or services, (3) did not give prior express invitation or permission to Defendant to send such faxes; or (4) gave Defendant prior express invitation or permission but were sent faxes without an opt-out notice on them.

(R. 46 at 9.)

Plaintiff submits that the latter proposed class meets the relevant certification requirements of Rule 23, specifically the numerosity, commonality, typicality, adequacy-of-representation, predominance, and superiority conditions. (R. 45 at 1-3.) Defendant argues that G.M. Sign fails to meet the Rule 23(a) prerequisites of commonality and typicality, as well as the Rule 23(b)(3) requirements of predominance, superiority, and manageability. (R. 55 at 7-13.)


"The class-action device was designed as 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)); see also Ortiz v. Fireboard Corp., 527 U.S. 815, 832 (1999) ("In drafting Rule 23(b), the Advisory Committee sought to catalogue in functional terms those recurrent life patterns which call for mass litigation through representative parties.") (internal quotation omitted). It "is an ingenious device for economizing on the expense of litigation and enabling small claims to be litigated. The two points are closely related. If every small claim had to be litigated separately, the vindication of small claims would be rare." Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 744 (7th Cir. 2008); see also Simer v. Rios, 661 F.2d 655, 669 n.24 (7th Cir. 1981).

"Rule 23 gives the district courts 'broad discretion to determine whether certification of a class-action lawsuit is appropriate,'" Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001)); Olson v. Brown, 594 F.3d 577, 584 (7th Cir. 2010), and "provides a one-size-fits-all formula for deciding the class-action question." Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., -- U.S. --, 130 S. Ct. 1431, 1437 (2010). Courts should exercise caution, however, in certifying classes. Thorogood, 547 F.3d at 746. Indeed, "[t]he Supreme Court has made clear that a class 'may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,' and 'actual, not presumed, conformance with Rule 23(a) remains . . . indispensable.'" Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (quoting General Tel., 457 U.S. at 160-61); see also Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 558 (7th Cir. 2003) ("Class certification requires a rigorous investigation into the propriety of proceeding as a class. . . ."). In deciding whether to certify a class, courts generally may not analyze a class's claims on the merits. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974); Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993).

To be entitled to class certification, a plaintiff must satisfy each requirement of Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-and one subsection of Rule 23(b). See Harper v. Sheriff of Cook Co., 581 F.3d 511, 513 (7th Cir. 2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). "'Failure to meet any of the Rule's requirements precludes class certification.'" Harper, 581 F.3d at 513 (quoting Arreola, 546 F.3d at 794). Satisfaction of these requirements, on the other hand, categorically entitles a plaintiff to pursue her claim as a class action. See Shady Grove, 130 S. Ct. at 1437. In certifying a class, a court "should endeavor to select the most appropriate subsection [of Rule 23(b)], not just the first linguistically applicable one in the list." Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir. ...

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