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Physicians Healthsource, Inc., An Ohio Corporation, Individually and v. Alma Lasers

September 18, 2012

PHYSICIANS HEALTHSOURCE, INC., AN OHIO CORPORATION, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY-SITUATED PERSONS, PLAINTIFFS,
v.
ALMA LASERS, INC., AND JOHN DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras United States District Judge

MEMORANDUM OPINION CHARLES P. KOCORAS, District Judge:

This matter comes before the Court on defendant Alma Lasers, Inc.'s ("Alma") motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Alma's motion is denied in part and granted in part.

BACKGROUND*fn1

This putative class-action lawsuit was spawned by three identical and unsolicited facsimiles (the "fax") that Alma sent to plaintiff Physicians Healthsource, Inc. ("PHI") in 2008. Alma, an Illinois corporation, sent the faxes to promote a free seminar on medical aesthetics. PHI alleges that Alma intended to market its products and services at the seminar.

The top of the one-page fax declares in bold letters that "Alma Lasers Invites You to a Comprehensive Medical Aesthetics Evening Seminar." To the left of the invitation is a circular seal that reads "Alma Lasers Leadership University, Medical Aesthetics."

Just below, the fax states that the seminar is free, and that topics to be covered include "laser physics, safety, treatment parameters, techniques, and the latest in laser technology." Participants will also have the opportunity to observe patient treatments and participate in a lab. The fax also advertises a workshop, where participants will discuss:

* Practice Management -- Building a Power Aesthetic Practice

* Pain Free Hair Removal

* Skin Tightening

* Pixel-Fractional Resurfacing

* LIVE Patient Treatments

* Certificate of Training

The bottom of the fax contains instructions for those interested in attending the seminar. Fax recipients are directed to register by contacting Alma via its website, phone number, or fax number. Finally, the fax provides phone and fax numbers for those wishing to be removed from Alma's fax distribution list.

PHI, an Ohio corporation, filed a two-count class-action complaint in the Circuit Court of the 19th District of Lake County, Illinois.*fn2 The complaint alleges that Alma's fax ran afoul of the Telephone Consumer Protection Act, 47 U.S.C. § 227, and that it is liable for conversion for Alma's use of PHI's fax machine, paper, ink toner, and employees' time. Alma removed the suit pursuant to 28 U.S.C. § ...


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