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Ira Holtzman, C.P.A, & Associates Limited, Individually and As the v. Gregory P. Turza

August 29, 2011

IRA HOLTZMAN, C.P.A, & ASSOCIATES LIMITED, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFF,
v.
GREGORY P. TURZA, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Ira Holtzman C.P.A. & Associates Limited represents a certified class of individuals in an action against Gregory P. Turza, in which class plaintiffs claim that defendant violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, by faxing them unsolicited advertisements. The plaintiff class, as defined in the court's order dated October 14, 2009, and clarified on November 5, 2009, Holtzman v. Turza, 2009 WL 3334909 (N.D. Ill. Oct. 14, 2009), comprises:

All persons who: (1) during the period September 2006 through March 2008; (2) received a "Daily Plan-It" fax identifying "Gregory P. Turza" and his telephone number (847-647-0200) or e-mail address (greg@myestateplan.net); and (3) had not previously consented to receiving such advertisements.

On August 3, 2010, the court granted in part and denied in part the parties' cross-motions for summary judgment. Specifically, the court denied defendant's motion for summary judgment on the issue of mitigation, and granted plaintiff's motion on two issues, finding that: (1) the "Daily Plan-It" faxes are advertisements under the TCPA; and (2) defendant is liable for all faxes received by the target list. The remaining factual issue was the number of faxes plaintiffs received.

In an attempt to resolve that lone outstanding issue, plaintiff has filed a second motion for summary judgment. In responding to that motion, defendant offered the affidavit of David Canfield, which plaintiff promptly moved to strike as untimely. At that time, defendant also filed a motion to decertify the class. For the following reasons, the court grants plaintiff's second motion for summary judgment, denies as moot plaintiff's motion to strike, and denies defendant's motion to decertify the class.

DISCUSSION

Plaintiff's Second Motion for Summary Judgment and Plaintiff's Motion to Strike

The court will not repeat most of the undisputed facts, which it has discussed at length in its earlier opinion granting in part and denying in part the parties' previous cross-motions for summary judgment, Holtzman v. Turza, No. 08 C 2014, 2010 WL 4177150 (N.D. Ill. Oct. 19, 2010), and which in any event are largely irrelevant to the instant motions. One exception is that, as the court found in ruling on the parties' cross-motions for summary judgment, it is undisputed that MessageVision, a fax broadcasting service, was hired to fax defendant's "Daily Plan-It" advertisements using defendant's contact list. Other pertinent undisputed facts mentioned throughout the opinion are derived from the parties' L.R. 56.1 statements submitted in connection with plaintiff's second summary judgment motion.

As mentioned above, after the court ruled on the parties' previous cross-motions for summary judgment, the remaining factual question was receipt of the faxes. In support of its first summary judgment motion, plaintiff had offered MessageVision and Top of Mind transmission reports showing that 11,945 faxes were sent, and that 8,630 of these were successfully transmitted to 221 unique fax numbers. Defendant argued that plaintiff had failed to lay a proper foundation to establish the integrity of those fax transmission reports. At that time, the court declined to grant summary judgment for either party on the issue of whether the faxes were received.

To allow the parties to attempt to resolve that outstanding issue, the court reopened discovery and permitted limited additional depositions. Plaintiff deposed Michael Richard, the Chief Financial Officer ("CFO") of MessageVision's parent company,*fn1 whom MessageVision produced in response to plaintiff's Rule 30(b)(6) request for the person "most knowledgeable about . . . the fax broadcasting software used by MessageVision." Richard's resulting testimony describes in detail the technology (the T.30 protocol, the "industry standard technology . . . that's been around for 30 years"), the hardware (the Avaya APX 1000, also an industry standard product), and the software (MessageVision's proprietary software) that MessageVision used to send defendant's faxes. Richard testified that all of those elements were reliably functioning during the relevant time period.

Richard's testimony adequately establishes a foundation for his knowledge that the faxes were received. Specifically, Richard explained that "[o]nce the [fax] transaction is concluded, the APX 1000 then reports the transaction back to [MessageVision's] proprietary software," at which point it "goes into a database, and that's how [MessageVision] reports [its] billing." Richard testified that, as CFO, he was responsible for billing MessageVision's clients, and thus was in a position to know if there were any problems with fax transmission or billing-which he testified there were not. Finally, Richard testified that when the T.30 protocol is used, a fax cannot be reported as delivered unless the receiving machine reports back that the entire fax has been successfully received. This testimony supports plaintiff's factual contention that MessageVision's records of successful fax transmissions are accurate and reliable, thereby showing that the class members received the faxes at issue.

Defendant disagrees, despite the fact that defendant's transmitting service, and defendant himself, relied on the until-now unquestioned integrity of MessageVision's system to compute the number of successful fax receipts that resulted in the charges paid by defendant. He argues that because Richard's expertise is finance, not technology, his testimony regarding MessageVision's fax technology is untrustworthy and cannot be considered as evidence that the class members received the faxes. Although defendant questions Richard's lack of technical expertise, Richard is offered not as an expert witness, but as a fact witness who testified about standard operating procedure. Richard testified that he familiarized himself with the relevant hardware and software, including by speaking with MessageVision employees to acquire additional information and understanding of the hardware and software. As mentioned above, Richard also testified that, as CFO, he personally supervised the billing of clients, including defendant, based on successfully transmitted faxes. As plaintiff points out, Richard would have known if any clients complained of unsuccessful fax transmissions, which they did not. Because he was supervising the fax transmission business, his testimony that MessageVision's systems were working is competent.

Defendant further attacks Richard's credibility by claiming that his testimony reveals his failure to understand the intricacies of fax technology. These critiques are frivolous. For example, defendant claims Richard's credibility is undermined by his allegedly inaccurate testimony that: (1) MessageVision used only the T.30 protocol; and (2) a device such as MessageVision's that uses the T.38 protocol cannot use the T.30 protocol. Even if defendant is correct that Richard's testimony reflects his limited comprehension of fax technology-a proposition that appears to be dubious at best-defendant's argument is contradicted by the fact that his own expert admits that T.38 converts to T.30 when a fax is sent using APX 1000. Defendant also claims that "there are now additional, individual fact questions over whether the Newsletters were transmitted to class members as faxes in violation of the TCPA or whether they were transmitted as email, which is not covered by the Act." This argument, however, is contradicted by the undisputed fact that all the ads were sent to telephone numbers rather than email addresses.

Because plaintiff has met its burden of pointing out the absence of a disputed factual issue, it is defendant's burden to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). But defendant has presented no evidence that conflicts with Richard's testimony on whether the faxes were received, and defendant cannot satisfy his burden by asking the court to "evaluate the weight of the evidence" that plaintiff has offered in ...


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