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Arnold Chapman, Individually and As the Representative of A Class of v. Wagener Equities

December 13, 2012

ARNOLD CHAPMAN, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY-SITUATED PERSONS, PLAINTIFF,
v.
WAGENER EQUITIES, INC. AND DANIEL WAGENER, DEFENDANTS.



The opinion of the court was delivered by: Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

On September 18, 2009, Plaintiff Arnold Chapman filed this proposed class action in the Circuit Court of Lake County, Illinois, against Defendants Wagener Equities, Inc. and Daniel Wagener, the company's president, (collectively, "WEI"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The defendants removed the action to this Court on November 20, 2009. On January 25, 2012, the plaintiff filed a motion to amend the proposed class definition set forth in his first amended complaint. Plaintiff then sought leave to file a second amended complaint that adds Paldo Sign & Display Company ("Paldo Sign") as a named plaintiff and class representative, in addition to modifying the class definition as proposed in the plaintiff's previous motion. For the reasons explained below, the plaintiff's motions are granted.

I. Background

A. Procedural

The plaintiff's motion to modify the class definition, Dkt. 115, and motion for leave to file a second amended complaint, Dkt. 154, are before the Court within the context of several other pending motions related to class certification. These are: (a) plaintiff's motions for class certification, Dkt. 60, for an evidentiary hearing on class certification, Dkt. 110, to file additional evidence, Dkt. 113, and to supplement and submit an expert report and transcript, Dkt. 128; and (b) the defendants' motion to strike the plaintiff's motion for leave to file additional evidence, Dkt. 131, and for a finding of a joint venture, Dkt. 173. In all, briefing of these motions consists of 25 filings submitted by both parties.

In response to an unrelated motion, the plaintiff has offered a suggestion on how to efficiently adjudicate all pending motions in this case. Dkt. 176, at 1-2. Noting that the briefing of the pending motions had become "convoluted" and "somewhat outdated," the plaintiff suggested the Court first rule on the motions to modify the class definition and for leave to file a second amended complaint, then strike the remaining pending motions as moot, and finally, grant the parties leave to file a streamlined set of briefs on class certification. The defendants "do not disagree" that the motions to modify and for leave to amend should be decided first, because class certification will involve issues of Chapman's adequacy as a class representative-an issue upon which the defendants' response to class certification hinges. Dkt. 178, at 4.

Accordingly, the Court will proceed on the plaintiff's suggestion and decide the motions to modify the class definition, Dkt. 115, and for leave to file a second amended complaint, Dkt. 154. Consequently, the following pending motions related to class certification are denied as moot: (1) the plaintiff's Motion for Class Certification, Dkt. 60; (2) the plaintiff's Motion for an Evidentiary Hearing on Class Certification, or in the Alternative, Oral Argument, Dkt. 110; (3) the plaintiff's Motion for Leave to Submit Additional Evidence in Response to Accusations Made in Defendant's January 13, 2012 Reply Brief, Dkt. 113; (4) the plaintiff's Motion for Leave to Submit the Expert Opinion of Richard W. Painter and Transcript of Hearing in Creative Montessori v. Ashford Gear, Dkt. 128; (5) the defendant's Motion to Strike or for Leave to File a Written Response to Plaintiff's Motion for Leave to Submit the Expert Opinion of Richard W. Painter and the Transcript of the Hearing in Creative Montessori v. Ashford Gear, Dkt. 131; and (6) the defendants' Motion for a Finding that Plaintiff's Counsel Anderson Wanca and Bock & Hatch, LLC, Are Engaged in a Joint Venture and Responsible for Each Other's Actions, Dkt. 173.

B. Factual

Defendant Wagener Equities, Inc. is an "industrial real estate brokerage, sales, leasing and property management company." Dkt. 61, at 3 ("Plaintiff's Memorandum of Law in Support of Class Certification"). Business to Business Solutions ("B2B") was a fax advertising business, operated by Caroline Abraham from August 2005 to September 2007. Id. According to the plaintiff, the defendants hired B2B to coordinate a fax advertising campaign on WEI's behalf. Id. The plaintiff alleges that the defendants worked with B2B to design a fax advertisement, targeting "industrial users.people who would be interested in industrial real estate or have a need for industrial real estate only." Id. at 3-4. Once WEI complied with B2B's payment instructions, B2B faxed the advertisement to a total of 10,145 fax numbers on November 9 and 10, 2006. Id. at 6-7. The plaintiff contends that, contrary to the TCPA, B2B sent the fax to recipients with which the defendants had no existing business relationship, and without receiving prior consent. Id. at 5.

The fax advertisement received by the plaintiff directed recipients "Looking for Industrial Property" to "Search the most complete Chicago area Property Database for -- FREE" at "www.FindIndustrialRE.com." Dkt. 34, Ex. A. The advertisement also explained that if recipients "received this fax in error and would like to be removed from [the defendants'] database," they should call "1-800-511-8943." Id. In the plaintiff's instant motion to modify the class definition, however, he contends that two forms of the advertisement were actually faxed on November 9 and 10, 2006, with the only difference between the two forms being the opt-out phone number displayed at the bottom of the advertisement. Dkt. 115, at 2.

Based on information taken, in part, from a B2B hard drive, the plaintiff's expert, Robert Biggerstaff, drafted a supplemental report detailing how B2B sent two sets of faxes with different opt-out numbers. Dkt. 115, Ex. A. According to the supplemental report, B2B started WEI's fax campaign on November 9, 2006 at 7:32 p.m., and then temporarily stopped the campaign on November 10, 2006 at 2:57 a.m. Id. For unknown reasons, B2B changed the optout phone number provided at the bottom of the advertisement during this pause, and then began sending the advertisement 15 minutes later at 3:12 a.m. Id. The report states that 8,555 persons, including Chapman, were sent the advertisement with the "1-800-369-5723" opt-out number, between November 9, 2006 at 7:32 p.m. and November 10, 2006 at 2:57 p.m. Another 4,795 people were sent the advertisement with the "1-800-511-8943" opt-out number on November 10, 2006, between 3:12 a.m. and 7:22 a.m. That is a total of 13,350 numbers, as opposed to the 10,145 originally alleged.

To date, the plaintiff has proposed three different class definitions at various stages in this litigation. The plaintiff's first amended complaint defines the proposed class as:

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 Defendants, (3) with respect to whom Defendants did not have prior express permission or invitation for the sending of such faxes, and (4) with whom Defendants did not have an established business relationship.

Dkt. 34, at 4. However, in his motion for class certification, the plaintiff proposed that ...


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