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Helping Hand Caregivers, Ltd. v. Darden Restaurants, Inc.

United States District Court, N.D. Illinois, Eastern Division

May 14, 2015

HELPING HAND CAREGIVERS, LTD., Plaintiff,
v.
DARDEN RESTAURANTS, INC., et al., Defendants.

MEMORANDUM OPINION AND ORDER

MANISH S. SHAH, District Judge.

This is a "junk fax" case brought under the federal Telephone Consumer Protection Act. Plaintiff claims a health consultant and an Italian restaurant chain faxed it an unsolicited advertisement, thereby causing it damage. Plaintiff further claims that it was treated "unfairly, " as proscribed by the Illinois Consumer Fraud and Deceptive Business Practices Act.

The restaurant defendant has moved to dismiss the two-count complaint for failure to state a claim. For the following reasons, the motion is granted in-part and denied in-part.

I. Legal Standard

"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). In reviewing the sufficiency of a complaint, a court accepts the well-pleaded facts as true. Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013).

II. Background

On October 31, 2014, plaintiff, Helping Hand Caregivers, received an unsolicited one-page fax promoting a free seminar offered by Social Wellness-the business name of defendant Mid Wilshire Consulting, Inc. [1] ¶¶ 10, 15, 16; [1-1]. The fax featured the logos of both Social Wellness and Olive Garden, a national restaurant chain. [1-1]. Defendant Darden Restaurants, Inc. owns Olive Garden. [1] ¶ 16.

The invitation stated that "Social Wellness is teaming up with Olive Garden to help jump start your employees towards a healthier lifestyle." [1-1]. It offered a "fun 30-45 minute Wellness Presentation on Stress & Nutrition." Id. The fax offered a "complimentary catered lunch from Olive Garden, " including "fresh salad, warm breadsticks, and our soup of the day-utensils included." Id. Those wishing to participate in the program were instructed to contact only Social Wellness. Id. The health company's contact information alone was displayed on the page. Id.

On December 17, 2014, plaintiff filed a two-count complaint against Darden, Mid Wilshire, an individual named Brian Kang, and John Does 1-12. [1]. In Count I, plaintiff alleges these defendants collectively violated the Telephone Consumer Protection Act by (1) sending it an advertisement by fax without first obtaining plaintiff's prior express invitation, (2) not providing a clear and conspicuous opt-out notice, and (3) not indicating it would comply with any opt-out request within 30 days. Id. ¶¶ 45-47. In Count II, plaintiff alleges that sending the fax violated the unfairness predicate of the Illinois Consumer Fraud and Deceptive Business Practices Act. Id. ¶ 56. Plaintiff claims it was damaged by being forced to incur the cost of defendants' advertising, by losing paper, toner, use of its fax machine, and use of its time. Id. ¶¶ 52, 58. Plaintiff seeks to represent a class of at least 39 individuals who also received the fax. Id. ¶¶ 26-34.

Darden has moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim.

III. Analysis

A. Count I - Telephone Consumer Protection Act

The TCPA prohibits the "use [of] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement...." 47 U.S.C. § 227(b)(1)(C). The statute defines "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." Id. § 227(a)(5). The Federal Communications Commission has interpreted this statutory definition to include "facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, " because "[i]n many instances, free' seminars serve as a pretext to advertise commercial products and services." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 21 FCC Rcd. 3787, 3814 (2006).

While the Seventh Circuit has not yet addressed the issue, the Eleventh Circuit recently held that, in addition to the person who physically sends a fax, "a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly under the TCPA's ban on the sending of junk faxes." Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245, 1254 (11th Cir. 2015). This interpretation is consistent with the statute's text and the FCC's interpretation of it, and I apply the broad meaning of "sender" here. See id. at 1256-57; see also 47 C.F.R. § 64.1200(f)(10) ("The term sender... means ...


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