United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Plaintiff Creative Montessori Learning Center, individually and on behalf of all others similarly situated, has brought a class action complaint against defendant Ashford Gear, LLC, alleging violations of the Telephone Consumer Protection Act, 42 U.S.C. § 227 ("TCPA") and conversion. Both counts are premised on the allegation that defendant sent, or authorized the sending of, an unsolicited facsimile advertisement to plaintiff and the class it represents. On April 19, 2011, the court denied defendant's motion for summary judgment, concluding that whether defendant instructed B2B (the entity that conducted the alleged fax campaign) to send facsimiles only to a list of customers provided by defendant remained in dispute (Doc. 157). The parties have not conducted any further discovery since the court issued that order. Nonetheless, despite the continued existence of this contested issue of material fact, plaintiff has now moved for summary judgment on the TCPA count. For the reasons described below, plaintiff's motion is denied.
As noted by the court in its April 19, 2011, order, few of the underlying facts of this case are undisputed. What is clear from the record is that defendant is a small business located in California that sells textiles, including a specialty blanket for preschoolers called the "Rollee Pollee." Sometime in 2006 defendant entered into some sort of an arrangement with a fax broadcasting company called "Business 2 Business Solutions" ("B2B"). That business was run by Caroline Abraham from her home in New York. Abraham worked with a Romanian company called Macaw which sometimes used the marketing name Maxileads. One of Macaw's or B2B's sales persons called himself Kevin Wilson and is Abraham's nephew. Wilson somehow came into contact with Brian Reeves, one of defendant's owners. They had a series of telephone conversations in which they entered into an arrangement for B2B to conduct a fax advertising campaign for defendant. Reeves and defendant prepared a draft advertisement for the Rollee Pollee blanket that was to be faxed to potential pre-school customers of defendant. Reeves sent that draft advertisement to B2B. The ad went through several revisions, with B2B adding a legal disclaimer at the bottom, and a final version was ultimately approved by Reeves.
According to B2B records, it sent a first set of 5, 362 faxes on June 7, 2006 and a second set of faxes on June 14-15, 2006. In total, the fax was sent 22, 222 times to 14, 579 persons and entities.
On June 27, 2006, the Florida Attorney General sent a "cease and desist" letter to defendant demanding that it stop sending illegal fax advertisements. Defendant faxed that letter to B2B. Reeves spoke with Wilson who explained why B2B thought the Florida Attorney General was incorrect. Defendant then informed the Florida Attorney General's office that its faxes were legal.
B2B did not follow its regular payment procedure in its dealings with defendant. Defendant sent to B2B one check payable to Maxileads in the amount of $28. The check was to pay for membership in B2B's "Priority Club, " not for payment of any actual fax service. B2B's regular payment procedure was to send clients a "payment letter" instructing the client on what to pay, how to pay, and the number of faxes for which the client would pay. B2B made a record of sending that payment letter with a "PDate" entry in an electronic table kept by Abraham. There is no entry in that electronic table for defendant, suggesting that no such letter was sent. Defendant claims to have never received such a letter.
B2B typically required client approval before sending the faxes. The approval process consisted of an approval by the client of the advertisement, as well as payment. B2B was provided payment in three ways: (1) receipt of the payment itself; (2) a copy of a void check showing the client's bank information from which B2B would print a fax check to take payment; or (3) if the client was going to mail a check, B2B would request that a hard copy be faxed to it and B2B would take the customer's word that the check would be mailed.
It is undisputed that none of the three payment methods was followed in the instant case. Instead, without providing defendant an invoice, estimate or payment letter, B2B on June 7, 2006, faxed the ad to a list of fax numbers that B2B had purchased from a third party. The following day, without notice to defendant, Abraham created a check in the amount of $542 payable to B2B using defendant's bank information found on the $28 check made payable to Maxileads. It is undisputed that defendant has never issued a check to B2B, and never specifically approved a broadcast to a list of potential recipients supplied by B2B. In fact, as noted in the court's April 19, 2011, order, Reeves testified that he expected B2B to send the faxes to a customer list he had provided, but could not identify that list, where it came from, when it was produced, or when he "gave it" to B2B. B2B has no electronic record of ever receiving such a list.
On June 14, 2006, B2B sent a second fax campaign to over 19, 000 fax numbers. That same day Abraham prepared a second check payable to B2B in the amount of $792 using the bank information from defendant's check to Maxileads. Defendant instructed its bank to refuse payment on that check. The bank returned the check to B2B and assessed a service charge. Defendant has never paid for the second set of faxes.
Summary judgment is appropriate only when the material facts are undisputed and demonstrate that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The moving party bears the initial burden of asserting the absence of a genuine issue of material fact, Celotex Corp. v. Catrett , 447 U.S. 317, 323 (1986), and must support that assertion by citing to materials in the record. Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).
Plaintiff moves for summary judgment on its TCPA claim. To prevail on this claim plaintiff must show that: (1) defendant used a telephone facsimile machine, a computer or other device to send one or more faxes to plaintiff's facsimile machine; (2) the faxes sent contain materials advertising the commercial availability or quality of any property, goods, or services; and (3) plaintiff did not give prior express invitation or permission for defendant to send the faxes." Hinman v. M and M Rental Ctr., Inc. , 596 F.Supp.2d 1152, 1158 (N.D. Ill. 2009).
Defendant challenges plaintiff's ability to establish the first element. Obviously, defendant itself did not actually send the faxes. Thus, defendant argues that plaintiff must, but cannot, establish ...