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Saf-T-Gard International, Inc v. Vanguard Energy Services

December 6, 2012

SAF-T-GARD INTERNATIONAL, INC., PLAINTIFF,
v.
VANGUARD ENERGY SERVICES, LLC, VANGUARD ENERGY, LLC, AND SEMINOLE ENTERGY SERVICES, LLC DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Saf-T-Gard International ("Saf-T-Gard") brings a purported class action against Vanguard Energy Services, LLC ("VES"), Vanguard Energy, LLC ("Vanguard"), and Seminole Energy Services, LLC ("Seminole"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, related to the transmission of unsolicited faxes.*fn1 Now before the court is Saf-T-Gard's motion for class certification pursuant to Federal Rule of Civil Procedure 23. For the reasons explained below, the court finds that the proposed class meets the requirements of Rule 23(a) and (b)(3). The court, however, amends the class definition to be compatible with the allegations in the First Amended Complaint.

I.BACKGROUND

Saf-T-Gard is a corporation located in Illinois that maintains fax equipment. VES is an Oklahoma limited liability corporation. Vanguard and Seminole are VES's parent companies and managing members. According to the allegations in the First Amended Complaint, on or about March 26, 2012, VES sent an unsolicited fax to Saf-T-Gard's fax machine. The fax advertisement promoted the sale of gas and electricity as well as consultant and broker services for additional gas and electric providers. VES offered to review the recipient's natural gas and electric accounts at no cost and without obligation and offered a monthly energy market update report at no cost. Saf-T-Gard alleges that it had not given VES prior express permission to send advertisements to it within eighteen months of the receipt of the fax, nor did Saf-T-Gard have a prior business relationship with any of the defendants. The fax contained no "opt-out" notice or telephone number for removal from VES's mailing list.

In its answer to the First Amended Complaint, VES admits that one of its employees sent a fax to Saf-T-Gard. (VES's Answer ¶ 8, ECF No. 24.) VES states, "On information and belief, an employee or employees of VES had previously communicated with an employee or employees at Saf-T-Gard. Based on information and belief, Saf-T-Gard provided information to VES regarding its natural gas contract and advised VES that it would provide VES with an opportunity to bid on a future contract." (Id. ¶ 9.) VES disputes Saf-T-Gard's assertions that the fax was unsolicited, that Saf-T-Gard did not give VES permission to send it fax advertisements, and that Saf-T-Gard had no prior business relationship with VES. In its response to Saf-TGard's requests to admit, VES "admits that VES or someone on behalf of VES has sent more than 100 facsimiles that provide information relating to its services but notes that this request does not address whether the sender . . . had permission from or a business relationship with the recipient." (Pl.'s Mem. in Supp. Class Cert. Ex D ¶ 11, ECF No. 31-4.) VES denies that it sent more than 500 faxes. (Id. ¶ 12.)

Section 227(b)(1)(C) of the TCPA states:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-- . . . .

(C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless--

(i) the unsolicited advertisement is from a sender with an established business relationship with the recipient;

(ii) the sender obtained the number of the telephone facsimile machine through--

(I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or

(II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number of the recipient before such date of enactment; and

(iii) the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D) 47 U.S.C. § 227(b)(1)(C).

In count I of the First Amended Complaint, Saf-T-Gard alleges that the defendants violated § 227(b)(1)(C) of the TCPA by transmitting unsolicited fax advertisements to the fax machines of Saf-T-Gard and the putative class members, or by having those faxes sent on their behalf. Saf-T-Gard seeks to bring this claim on behalf of a class of (a) all persons or entities (b) who, on or after May 14, 2008 and on or before June 4, 2012 (c) were sent faxes by or on behalf of defendants promoting their goods or services for sale (d) and who were not provided an "opt out" notice as described in 47 U.S.C. § 227.*fn2

Vanguard and Seminole moved to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Saf-T-Gard failed to allege facts showing that Vanguard or Seminole sent an unsolicited fax or facts sufficient to establish the liability of Vanguard and Seminole as parent companies of VES. On November 28, 2012, the court denied the motion, finding that Saf-T-Gard had alleged facts that supported the inference that VES had engaged in marketing of energy services, including sending fax advertisements, on behalf of its parent ...


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