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Creative Montessori Learning Center v. Ashford Gear

July 27, 2011

CREATIVE MONTESSORI LEARNING CENTER, PLAINTIFF,
v.
ASHFORD GEAR, DEFENDANT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Creative Montessori Learning Center has brought a putative class action complaint against defendant Ashford Gear, LLC alleging violations of the Telephone Consumer Protection Act ("TCPA"), 42 U.S.C. § 227 and conversion. Both counts are premised on the allegation that defendant sent, or authorized the sending of, an unsolicited facsimile advertisement to plaintiff.

Plaintiff has moved under Fed.R.Civ.P 23(b)(3) to certify a class defined as: "All persons who were sent one or more faxes in June 2006 regarding the 'Rollee Pollee' self-contained napping station, offering 'Order 20 Rollee Pollees by June 20, 2006 and Get 6 FREE!,' and identifying (718) 360-0971 as the number to call to stop receiving faxes."

Defendant opposes class certification. For the reasons described below, the court grants plaintiff's motion.

BACKGROUND

Defendant sells a "blanket, pillow, sleeping mat combination" called the "Rollee Pollee." In the summer of 2006, defendant hired a fax broadcasting company called Back 2 Business ("B2B") to conduct a fax advertising campaign on defendant's behalf. Defendant provided B2B with an advertisement to be faxed to potential customers.

Plaintiff's expert, Robert Biggerstaff, is a retired engineer with experience in the design and evaluation of computer databases and networks, including computer-based facsimile systems. According to Mr. Biggerstaff, on both June 7, 2006 and June 14-15, 2006, B2B faxed a single advertisement a total of 31,510 times for defendant. 22,222 were successfully delivered to 14,574 different fax machines.

Plaintiff alleges that defendant sent two unsolicited fax advertisements to plaintiff's fax machine on June 7, 2006 and June 14-15, 2006.

DISCUSSION

A. Legal Standard

1. Rule 23

Class action suits are governed by Fed.R.Civ.P. 23. A two-step analysis is required to determine if class certification is appropriate. First, plaintiff 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). 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). Here, plaintiff seeks class certification under Rule 23(b)(3).

Under Rule 23(b)(3), the court must find that "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." The court should not consider the merits of the underlying claim when evaluating whether a class should be certified. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 166 (1974). The court may, however, "probe behind the pleadings." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); see also Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir.2001).

2. TCPA

The TCPA prohibits the use of "any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C). It also creates a private right of action whereby the recipient of an unsolicited fax may bring an action to "recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater." 47 U.S.C. § 227(b)(3)(B). Knowing or willful violations may entitle the plaintiff to treble damages. 47 U.S.C. § 227(b)(3)(C).

To prevail on a claim under the TCPA, plaintiff must show that defendant: "(1) used a telephone facsimile machine, computer or other device to send a facsimile; (2) the facsimile was unsolicited; and (3) the facsimile constituted an advertisement." Hinman v. M and M Rental Center, Inc., 545 F. Supp. 2d 802, 805 (N.D.Ill.2008).

B. Application

1. Numerosity

Rule 23(a)(1) requires a plaintiff to demonstrate that the members of the prospective class are so numerous as to make joinder impracticable. See e.g., Parker v. Risk Management Alternatives, Inc., 206 F.R.D. 211, 212 (N.D.Ill.2002). "Although there is no 'bright line' test for numerosity, a class of forty is generally sufficient." McCabe v. Crawford & Co., 210 F.R.D. 631, 643 (N.D.Ill.2002) (internal citations omitted). As noted, plaintiff alleges that B2B faxed a single advertisement 31,500 times for defendant. 22,222 were successfully delivered to 14,574 different fax numbers.

The court finds, and defendant does not contest, that a class consisting of thousands of recipients of defendant's fax advertisement is sufficiently numerous that joinder of all members is impracticable.

2. Commonality

Rule 23(a) (2) "requires the presence of questions of law or fact common to the class." The rule does not mandate absolute commonality; a common nucleus of operative fact is usually enough to satisfy the requirement. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.1998). Here, plaintiff contends that defendant engaged in "standardized conduct" by faxing a form advertisement to a target list created and provided by B2B. See Keele, 149 F.3d at 594. Defendant admits to hiring B2B to send the faxes.

Plaintiff raises several common questions of law and fact: (1) whether defendant's fax is an advertisement; (2) whether defendant violated the TCPA by faxing that advertisement without prior express invitation or permission to do so and without an established business relationship with the class members; (3) whether plaintiff and the other class members are entitled to statutory damages; (4) whether defendant sent the advertising faxes knowingly or willfully and, if so, whether the court should treble the statutory damages.

The court finds, and defendant does not contest, that the Rule 23(a)(2) commonality ...


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