United States District Court, N.D. Illinois, Eastern Division.
DAVID DAVIES d/b/a DAVIES HOME SERVICES, individually and as the representative of a class of similarly situated persons, Plaintiffs,
W.W. GRAINGER, INC., and JOHN DOES 1-12, Defendants.
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiff David Davies d/b/a Davies Home Services ("Davies") filed a two count Amended Class Action Complaint individually and on behalf of all similarly situated persons against defendants W.W. Grainger, Inc. and John Does 1-12 alleging violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1), and common law conversion. Davies moved for class certification  and defendant W.W. Grainger, Inc. ("Grainger") moved for a determination that the Court should not certify a class . For the reasons stated herein, the Court grants Grainger's motion based on inadequate class representation.
W.W. Grainger allegedly sent a telephone facsimile advertisement without permission on December 2, 2009, to Davies and other small businesses. Davies seeks to certify the following class of plaintiffs:
All persons who were sent one or more telephone facsimile messages since April 5, 2009, that advertised the commercial availability of property, goods, or services offered by W.W. Grainger, Inc., that did not contain an opt-out notice that complied with federal law.
Grainger admits that it sent the single fax to Davies as part of an advertising campaign directed at certain small business customers. Davies neither took advantage of the offer nor did he opt-out or otherwise request that he not receive any further advertising from Grainger. Davies was an existing customer of Grainger, having conducted nine separate business transactions with Grainger between February 1994 and September 2008. Davies asserts that he does not recall making the most recent purchase, of a dehumidifier on September 15, 2008, and suggests that it may have been purchased by one his customers to whom he had given his Grainger account information.
Davies testified at his deposition that it was possible that he provided Grainger with his fax number. Although it was not labeled as a fax number, Davies' number was listed in multiple public directories, including 2007 and 2008 Business White Pages for the North Shore Region. In mid-2009, Grainger paid a company called Infogroup to find fax numbers for the small businesses in Grainger's database. Infogroup provided Davies' fax number to Grainger and told Grainger that it obtained the fax numbers from public directories. Davies neither requested nor paid to have his numbers included in the public directories. The fax machine was attached to Davies' second phone line and calls to the line would be prompted to enter "1-2-3" in order to turn the fax machine on. Davies alleges that he requested AT&T remove the second line phone number from their listing.
Between February 19, 2008, and October 24, 2012, Davies received approximately 700 faxes from various senders, including the one that Grainger sent. Davies filed the instant class action complaint against Grainger more than three years after receiving the fax at issue.
A putative class must meet the requirements of Federal Rule of Civil Procedure 23(a) before the court will certify the class. Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 591 (7th Cir. 2011). The only requirement at issue here is adequacy of the proposed class representative, Davies. "[T]here must be enough congruence between the named representative's claim and that of the unnamed members of the class to justify allowing the named party to litigate on behalf of the group." Spano v. Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011). The Seventh Circuit has explained that a named plaintiff "cannot be an adequate representative of the class of unconsenting recipients of... faxes if it is subject to a defense that couldn't be sustained against other class members." CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 725 (7th Cir. 2011). "The presence of even an arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiff's representation. The fear is that the named plaintiff will become distracted by the presence of a possible defense applicable only to him so that the representation of the rest of the class will suffer.'" Id. at 726 (quoting J.H. Cohn & Co. v. American Appraisal Associates, Inc., 628 F.2d 994, 999 (7th Cir. 1980)).
Grainger moves for the court to deny class certification following discovery directed solely to the issue of Davies' adequacy as class representative. First, Grainger asserts that it arguably has three defenses to Davies' TCPA claim against Grainger that are likely to become a major focus of the litigation. Grainger argues that facts established in discovery demonstrate that Grainger has the following unique defenses to Davies' claim: (1) Davies had a longstanding, established business relationship with Grainger; (2) Davies voluntarily made his fax number available in at least two public directories over several years; and (3) Davies recognized and understood the opt-out language on the fax advertisement he received from Grainger. Grainger also moves to deny class certification as to Davies' claim of common law conversion for the loss of ink and paper used by the fax.
1. Unique Defenses to Davies' TCPA Claim
Grainger asserts that it sent the fax to Davies as part of an advertising campaign directed to its customers. The TCPA prohibits the use of any telephone facsimile machine to send, to a telephone ...