THE SAVANNA GROUP, INC., individually and as the representative of a class of similarly-situated persons, Plaintiff,
TRYNEX, INC. and JAMES TRUAN, Defendants.
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
Plaintiff Savanna Group on behalf of a class of similarly situated individuals brings a class action against Defendants Trynex, Inc. and James Truan for alleged violations of the Telephone Consumer Protection Act pursuant to 47 U.S.C. § 227. Before the Court are the parties' cross-motions for summary judgment. For the following reasons, the Court denies Plaintiff's Motion and grants in part and denies in part Defendants' Motion.
Plaintiff, the Savanna Group, Inc. ("Savanna"), is an Illinois corporation. (Defs. 56.1 ¶ 1.) Defendant Trynex, Inc. is a Michigan corporation with its principal place of business in Warren, Michigan. (Defs. 56.1 ¶ 2.) Trynex sells salt-spreaders and other snow and ice removal equipment to distributors and dealers. (Defs. 56.1 ¶ 13.) Defendant James Truan is the vice president of Trynex and the head of marketing. (Defs. 56.1 ¶¶ 3, 29; Pls. Resp. to Defs. 56.1 ¶¶ 3, 29.) Trynex markets its equipment through industry publications and trade shows. Trynex also uses "SnowEx Alerts." (Defs. 56.1 ¶ 12.) Prior to December of 2006, Trynex sent out SnowEx Alerts using its in-house fax machine. (Defs. 56.1 ¶ 16; Pls. Resp. to Defs. 56.1 ¶ 16.)
In December of 2006, Barry Truan-a Trynex customer service representative and James Truan's then 21-year old son-hired Business to Business Solutions ("B2B") to send out a "SnowEx Alert" fax promoting Trynex's extended warranty program. (Defs. 56.1 ¶¶ 17, 19; Pls. Resp. to Defs. 56.1 ¶¶ 17, 19.) B2B was a fax advertising business operated by Caroline Abraham in conjunction with a Romanian company, Macaw. (Pls. 56.1 ¶ 9;). B2B acted as Macaw's agent in the United States and "quarterbacked" its faxing operation from Brooklyn, New York. (Pls. 56.1 ¶ 10.) Generally, B2B would assist a customer in drafting a fax advertisement and then send it after receiving the customer's approval. (Pls. 56.1 ¶ 12; Defs. Resp. ¶ 12.) B2B obtained its list of fax recipients by culling a list of targets from a database purchased by InfoUSA. (Pls. 56.1 ¶ 13; Defs. Resp. ¶ 13.) B2B did not contact any of the companies in the database to request express permission or invitation to receive the faxes prior to sending them. ( Id. ¶ 13.) In coordinating the faxing, Caroline Abraham never spoke with Barry Truan or anyone from Trynex. (Pls. 56.1 ¶ 92.)
Barry Truan paid B2B $508 by check from Trynex's petty cash account for the faxing services. As an individual who routinely signs petty cash checks at Trynex, James Truan signed the check. (Defs. 56.1 ¶ 39.) The "Memo" section of the carbon back of the check contained the hand-written notes "Blast Fax" and "Client # T120701." (Pls. 56.1 ¶ 18; Defs. Resp. to Pls. 56.1 ¶ 18.) Barry Truan then faxed a copy of the check to B2B.
The fax Trynex hired B2B to send ("Trynex fax") stated the following:
"BEST BUILT... BEST BACKED! YEAR-END OFFER! 50% OFF ON EXTENDED WARRANTY FOR ALL OF OUR SPREADERS PURCHASED IN DECEMBER, 2006, AND JANUARY, 2007! For a limited time we are offering 50% OFF on our extended warranty - a total of 5 years of coverage for HALF THE PRICE!!! Call 1-800-SALTERS for more information."
(Defs. 56.1 ¶ 22, Decl. A, #B2B000021.)
In the actual fax transmission, B2B attached its own 2-page fax advertisement to the SnowEx Alert without Trynex's knowledge or authorization. (Defs. 56.1 ¶¶ 50-51; Pls. 56.1 ¶¶ 50-51.) Based upon information recovered from the hard-drive of a B2B computer, B2B sent the Trynex fax to a total of 12, 163 fax numbers, of which 8, 199 were "successful error-free received fax transmissions." (Pls. 56.1 ¶ 38.) Records indicate that B2B successfully sent the fax to Savanna Group's fax number. (Pls. 56.1 ¶ 39.) The B2B hard-drive contained a file named "T120701_SnowexTheirsCombo061219a-barry.tif." (Pls. 56.1 ¶ 40.)
Plaintiff brought a class action on behalf of itself and other entities sent the fax against Trynex and James Truan (among others) in Illinois Circuit Court alleging violations of the Telephone Consumer Protection Act. See 47 U.S.C. § 227. On December 16, 2010, Defendants removed the case to federal court on the basis of federal question jurisdiction under 28 U.S.C. § 1331. (R. 1.) Plaintiff seeks $500 in statutory damages per violation, as well treble damages. (R. 161; R. 201.)
On February 20, 2013, the Court certified a class action pursuant to Federal Rule of Civil Procedure Rule 23 composed of the following class of individuals:
All persons who were successfully sent a facsimile on December 19, 2006 or December 20, 2006, from "SnowEx... Leaders in Ice Control" promoting the "best built... best backed" salt spreaders, offering "50% off on extended warranty for all of our spreaders purchased in December, 2006 and January, 2007, " and ...