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Physicians Healthsource, Inc. v. Allscripts Health Solutions, Inc.

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

June 2, 2017

PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs,
v.
ALLSCRIPTS HEALTH SOLUTIONS, INC. and ALLSCRIPTS HEALTHCARE LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          Jeffrey Cole Magistrate Judge.

         INTRODUCTION

         “Plaintiff is a professional class-action plaintiff who regularly works with [Law Firm of] Anderson & Wanca to file TCPA cases.” Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, 2014 WL 7366255, at *7 (S.D. Fla. 2014).[1] The plaintiff has moved for certification of this “junk fax” case as a class action under Fed.R.Civ.P. 23(a) and 23(b)(3). Denial of class certification and of a finding that the plaintiff and/or its counsel is not appropriate is reviewed for an abuse of discretion. Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 591 (7th Cir. 2011). Thus, review is deferential, but not abject. CE Design, Ltd., 637 F.3d at 723.

         The defendants have objected to certification and have filed a cross-motion for summary judgment, submitting that the plaintiff gave its express permission to send it faxes advertising defendants' goods and services. The materials filed in connection with the motion for class certification total 1105 pages. At first blush, this seems not to bode well for what ought to be an uncomplicated showing of requisite class action elements like commonality, typicality, and predominance. The materials filed in connection with defendants' summary judgment motion add up to about the same: 1166 pages. Likewise, it is somewhat counterintuitive (although by no means conclusive) that there is no genuine issue of fact in those lengthy materials, especially when the question presented seems so basic: did the plaintiff give the statutorily required permission to the defendants to fax it advertisements.

         To complicate things even more (due in large measure to the presentation of the defendants), the two motions are inextricably intertwined, making review of the parties' arguments and evidence difficult. Time-honored warnings, such as the impermissibility of asking a judge to play archaeologist with the record, Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724, 731 (7th Cir. 2014), or hunt for truffles buried in briefs, Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015), come to mind. The Seventh Circuit's advice in Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir. 2006) that counsel for both sides should endeavor to make it easier for the court to rule in their client's favor - does not.

         We turn to the motion for class certification.

         I. BACKGROUND

         The plaintiff filed this suit five years ago under the Telephone Consumer Protection Act (“TCPA”), 47 USC §227, which prohibits any person from sending unsolicited fax advertisements, unless the sender has an established business relationship with the recipient, the sender obtained the fax number through voluntary communication or a directory, and the fax includes an opt-out notice meeting certain statutory requirements. 47 USC §227(b)(1)(C). The statute defines an “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.” 47 U.S.C. § 227(a)(5). Federal regulations define “established business relationship” as:

a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.

47 C.F.R. § 64.1200(f)(6).

         Opt-out notices are also required for faxes sent with the recipient's permission. Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013). The provision covering opt-out notices requires that the notice be “clear and conspicuous and on the first page” of the advertisement, state that the recipient can make a request that the sender not send any further unsolicited advertisements, and include a cost-free phone or fax number to which the recipient can communicate its request. 47 U.S.C. §277(b)(2)(D). For one reason or another, the faxes at issue here do not comply with the opt-out notice requirements. [Dkt. #204-1, at 18-19].

         The potential monkey wrench is that in August of 2015, three years after the suit was filed, the defendants sought and obtained from the F.C.C. a retroactive waiver of the requirement that even faxes sent with permission have an opt-out notice. The parties are at odds over whether that waiver applies to civil litigation (or simply FCC enforcement proceedings) and whether it trumps Seventh Circuit precedent in which our Court of Appeals has said “[e]ven when the Act permits fax ads-as it does to persons who have consented to receive them, or to those who have established business relations with the sender-the fax must tell the recipient how to stop receiving future messages.” Turza, 728 F.3d at 683.

         Recently, the Court of Appeals for the D.C. Circuit vacated the FCC's 2006 Solicited Fax Rule and held that “the . . . Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. F.C.C., 852 F.3d 1078, 1079 (D.C.Cir. 2017). The Seventh Circuit's holding in Turza, however, did not even mention the FCC rule, but relied exclusively on the statute, itself, when it said that opt-out notices are required on solicited faxes. See 728 F.3d at 683 (“Even when the Act permits fax ads-as it does to persons who have consented to receive them, or to those who have established business relations with the sender-the fax must tell the recipient how to stop receiving future messages. 47 U.S.C. § 227(b)(1)(C)(iii), (2)(D)”). Given the institutional hierarchy of the federal courts, we are bound to follow Turza, not Bais Yaakov. See Hays v. United States, 397 F.3d 564, 567 (7th Cir. 2005); United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994). See also United States v. Castro-Portillo, 211 F.App'x 715, 722 (10th Cir. 2007); Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir. 1999).

         II. FACTS OF THE CASE

         On its surface, the suit is about plaintiff's claim that defendants violated the Act by sending it anywhere from 32 to 36 faxes [Dkt. #204-1, at 2-3]; plaintiff's claims vary throughout the case and even in its motion for certification. The faxes were sent between July 2008 and December 2011, on an average of about once a month. [Dkt. #204, Page 2/3]. But when the surface is scratched, this case is perhaps something of a continuation of a discovery dispute from a case that has been settled, Geismann v. Allscripts-Misy's Healthcare Solutions, Inc., 09 CV 5114, liberally seasoned with some leftover animosity between the parties and especially between their counsel.

         That much is clear from the opening paragraph of the Complaint, which alleges that, in the previous case, the defendants withheld the 32 faxes at issue now, thereby, it is alleged, perpetrating a “fraud . . . upon the [plaintiffs] and [Magistrate] Judge Young B. Kim who presided over the case.” [Dkt. #78, ¶ 1]. If the defendants have it right, the plaintiff could have filed a motion to vacate the final approval order in that case under Fed.R.Civ.P. 60(b)(3). Or, it could have asked for other relief against the defendants and their counsel. But the plaintiff's lawyers chose instead to file another junk fax case. That is a strategic decision - by which it is bound. Crowe ex. rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 444 (7th Cir. 2011); Abbott Laboratories v. Takeda Pharmaceutical Co. Ltd, 476 F.3d 421 (7th Cir.2007). In any event, it is not productive to attempt to recreate now what happened in discovery in another case years earlier. Nor is it necessary.[2]

         The Complaint, which appears to be based on earlier Complaints in other cases, [3] is premised on a view of junk faxes that in a certain respect harkens back to a less sophisticated era - although one which has not fallen totally into desuetude. It alleges that:

[u]nsolicited faxes damage their recipients. A junk fax recipient loses the use of his fax machine, paper, and ink toner. An unsolicited fax wastes the recipient's valuable time that would have been spent on something else. A junk fax interrupts the recipient's privacy. Unsolicited faxes prevent fax machines from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue wear and tear on the recipients' fax machines, and require additional labor to attempt to discern the source and purpose of the unsolicited message. A junk fax consumes a portion of the limited capacity of the telecommunications infrastructure serving the victims of junk faxing.

[Dkt. #78, ¶ 3].

         This preamble to the Complaint recalls the original statement of legislative intent from a quarter century ago. See S. REP. 102-177, 20 (Oct. 8, 1991). But, much has changed since 1991. Even on a traditional fax machine, the cost to receive a fax in terms of ink and paper is about 2 cents. Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 941 (7th Cir. 2016)(“Fax paper and ink were once expensive, and this may be why Congress enacted the TCPA, but they are not costly today.”); Yuri R. Linetsky, Protection of "Innocent Lawbreakers": Striking the Right Balance in the Private Enforcement of the Anti "Junk Fax" Provisions of the Telephone Consumer Protection Act, 90 Neb. L. Rev. 70, 84 (2011).

         That makes - it could be argued - the monetary damages to the plaintiff here about 72 cents. [Dkt. #1, ¶11, Dkt. #1-2, Pages 2-37/37]. And, of course, it is easy to throw a traditional fax, like a piece of junk mail, in the trash. Am. States Ins. Co. v. Capital Associates of Jackson Cty., Inc., 392 F.3d 939, 942 (7th Cir. 2004). But even that view of junk faxes is outdated as the traditional fax machine goes the way of the dinosaur. Most faxes are now received on computer fax servers that allow the recipient to view faxes on their computer and decide whether or not to print the document, reducing the cost to essentially zero. Linetsky, 90 Neb. L. Rev. at 85. A recipient's seclusion - not so much privacy - might be disturbed by the whir of a traditional fax machine, like the jangling of a telephone, but the computer fax server has even eliminated or significantly reduced that concern. Am. States, 392 F.3d at 942.

         But, even if the above is correct, we are not at liberty to disregard the will of the Congress. “While a statute remains on the books...it must be enforced rather than subverted.” Murray v. GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir. 2006). A judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921). “Disagreement with congressional policy” is not permitted, United States v. Goldberg, 491 F.3d 668, 673 (7th Cir. 2007), and a judge is not entitled to override Congress's contrary view. See Patterson v. Shumate, 504 U.S. 753, 759 (1992); Fed. Deposit Ins. Corp. v. Philadelphia Gear Corp., 476 U.S. 426, 441 (1986); United States v. Roberson, 474 F.3d 432, 434 (7th Cir. 2007). Even in a junk fax case, the statute “is what it is.” Creative Montessori Learning Centers v. Ashford Gear LLC, 662 F.3d 913, 915 (7th Cir. 2011)(Posner, J.).

         Still, one must wonder why the defendants continued to send the very type of junk faxes, at least to the plaintiff, that got them into such expensive difficulty in the first place. The defendants licensed medical billing software to the plaintiff; their faxes, though, touted free beach towels and cookie jars with office supply orders. The settlement agreement in the prior case does not indicate the payout to the class, but the defendants had to pay plaintiff's counsel nearly $600, 000 in attorney's fees and expenses. [Geismann v. Allscripts-Misy's Healthcare Solutions, Inc., 09 CV 5114; Dkt. #142, ¶ 12]. Remarkably, the defendants sent at least three of the faxes at issue here after it had reached terms in the Geisman case. [Dkt. #78, ¶12; Geismann v. Allscripts-Misy's Healthcare Solutions, Inc., 09 CV 5114; Dkt. #130].

         These types of faxes were sent in groups of 4, 000 or 5, 000, or 7, 000 or 8, 000 at a time. [Dkt. #204-5]. One might think a business that had just agreed to pay well over a half million dollars in legal fees, over and above monetary damages, would adjust its marketing strategy a bit. Or, at the very least, stop sending faxes to what might be one of the more litigious businesses, in terms of junk fax litigation, in the country.[4]

         Whatever efficacy faxes such as these might have, it's hard to believe it's worth the risk and cost of a junk fax suit. While the penalties for sending multiple faxes can get to be draconian as Judge Posner has observed, Creative Montessori Learning Centers, 662 F.3d at 915, damages per recipient pale in comparison to the attorney's fees. Id. at 915-16. Damages under the Act are $500 or, at most, $1500 per fax if a violation is proven willful, and damages are trebled. 47 U.S.C. §227(b)(3). Attorney's fees to plaintiff's counsel can be infinitely more and constitute a significant threat to violators of the Act. The potential for attorney's fees to a losing defendant under this “obscure statute, ” can have an in-terrorem effect and result in a settlement of even a questionable case. Creative Montessori Learning Centers, 662 F.3d at 915-916. These cases are almost invariably brought as class actions, id. at even though the Act's sponsor, Senator Hollings, contemplated that individuals would bring TCPA claims pro se in small claims court.[5] That has proven to be an unrealized hope, and court after court agrees, generally without the need for extensive discussion, that “small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Pastor v. State Farm Mut. Auto. Ins. Co, 487 F.3d 1042, 1047 (7th Cir. 2007).

         This case is entering its sixth year, and its docket comprises over 7000 pages of entries. As already noted, the cross motions at issue here, alone, comprise more than 2200 pages. A satellite motion to strike, brings that figure toward 3000 pages.[6] The cost to the taxpayers, who are, after all, in a fashion subsidizing the resolution of this dispute, is already significant and continues to grow. Yet, from the plaintiff's business perspective, all this is about two or three dozen faxes sent over the course of three and a half years - meaning the plaintiff's fax machine, if there was one, didn't even “whir” at an average of once a month. And, as already noted, all of this was (allegedly) part and parcel of a case that settled more than four years ago for a great deal of money.

         But, the statute is what it is and thus is to be enforced as Congress intended and not evaded by judicial action. See cases supra at 7.

         III. THE PUTATIVE CLASSES

         Plaintiff hopes to certify two classes of fax recipients in this case:

Class A - All persons or entities who were successfully sent one or more faxes stating: (1) “The Ten Second Stimulus Survey, ” and were sent April 28, 2009, April 30, 2009, and May 7, 2009; (2) “Backup Tape Sale Purchase 5 backup tapes before May 29, 2009, ” and were sent on May 19, 2009; (3) “EHR Stimulus Tour - Coming to Lexington KY, ” and were sent on September 29, 2009, and October 6, 2009; (4) “You're Invited Live Web Event with Glen Tullman, ” and were sent on December 1, 2009; (5) “EHR Stimulus Tour - Coming to Indianapolis, IN, ” and were sent on January 22, 2010, and February 1, 2010); (6) “Are You Feeling Lucky Win $105 in Copy Paper, ” and were sent on March 4, 2010; (7) “Spring Savings when you order online, ” and were sent on April 2, 2010; (8) “You're Invited - Exclusive EHR Summit at ACE 2010, ” and were sent on June 2, 2010; (9) “Have you ordered your 2011 Codebooks?”, and were sent on June 22, 2010; (10) “Take Me Out to the Ballgame, ” and were sent on June 23, 2010; (11) “Free Webinar Allscripts Payerpath Denial Management, ” and were sent on July 16, 2010; (12) “Allscripts You're Invited Tiger/PM User Group Meeting and Opening Door to the Digital Office, ” and were sent August 12, 2010; (13) “Allscripts End of Summer Special when you order online, ” and were sent August 18, 2010; (14) “Allscripts How do I pay for an Electronic Health Record now when my Stimulus payments won't come until later, ” and were sent on September 21, 2010, October 14, 2010, and October 28, 2010; (15) “How Do I pay for an Electronic Health Record when my Stimulus payments won't come until later, ” and was sent on September 30, 2010; (16) “Allscripts Tiger EHR Enablement Program Exclusive Program for Tiger Clients, ” and were sent on October 26, 2010, and November 30, 2010; (17) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2010, ” and were sent December 2, 2010; (18) “Tiger EHR Enablement Program, ” and was sent on December 29, 2010; (19) “Allscripts would like to wish you a Happy Valentine's Day and Give You a Free Gift, ” and were sent on February 4, 2011; (20) “Allscripts Prepare for ICD-10-CM, ” and were sent on March 23, 2011; (21) “Have you ordered your 2012 Codebooks?, ” and were sent on June 3, 2011; (22) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2011, ” and were sent on November 1, 2011, and December 1, 2011; and (23) “Allscripts Paperless Year End, ” and were sent on December 5, 2011; and (24) “New Customer Appreciation Copy Paper Special, ” and were sent on January 6/7, 2010.
Class B - All persons or entities who were successfully sent one or more faxes stating: (1) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2011, ” and were sent on December 1, 2011; (2) “Allscripts Paperless Year End, ” and were sent on December 5, 2011; and (3) “New Customer Appreciation Copy Paper Special, ” and were sent on January 6/7, 2010).

[Dkt. #204-1, at 3].

         The three Class B faxes are faxes 22, 23, and 24 in Class A. Plaintiff explains that there are two classes because it has transmission logs for the three faxes in Class B, and invoices from Westfax, the company that defendants engaged to send faxes on its behalf, for the other 29. Westfax, the plaintiff tells us through the testimony of Westfax's president, only sends invoices for successful broadcasts. [Dkt. #204-1, at 6; #204-9 Clark Dep., at 28-29]. Mr. Clark testified that they bill their customers by “successful page” and that the defendants received a “detailed report” “indicat[ing] whether or not each fax was successful or not . . . .” [Dkt. #204-9 Clark Dep., at 29-29]. The invoices reveal thousands of faxes were sent. For example, the very first invoice states that the broadcast quantity was 5, 113. [Dkt. #204-5, at 2/257]. Plaintiff's calculations put the overall numbers at 134, 357 for Class A and 17, 781 for Class B. [Dkt. #215, at 13].

         Defendants complain that the Westfax invoices don't indicate to whom the faxes were sent - that's true - which would seem like a strike against ascertainability. A class has to be clearly defined and based on objective criteria. Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015). While some Circuits demand more, the Seventh Circuit has rejected any more stringent a requirement than that. Id. The defendants didn't keep records of their faxing, and the Seventh Circuit has explained that “refusing to certify on th[e] basis [of ascertainability] effectively immunizes defendants from liability because they chose not to maintain records of the relevant transactions.” Id. at 668; see also Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 250 (N.D. Ill. 2014)(“Doing this - or declining to certify a class altogether, as defendants propose - would create an incentive for a person to violate the TCPA on a mass scale and keep no records of its activity, knowing that it could avoid legal responsibility for the full scope of its illegal conduct.”).[7]

         This is not to say that there will not be problems down the line, but they will be addressed to the extent allowed by the parties' submissions in the context of manageability. In the end, however, when a class is certified in junk fax cases, it's up to the plaintiff and class counsel to come up with details on management of the case or face decertification. Mullins, 795 F.3d at 664.

         A class may be certified only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011)(emphasis supplied). Accord Montessori Learning Centers, 662 F.3d at 916; CE Design Ltd, 637 F.3d at 723. It must be remembered that certification of class action can coerce a defendant into settling on highly disadvantageous terms regardless of the merits of the suit. That is because the TCPA makes violators strictly liable for “cumulatively very heavy statutory penalties, ” CE Design Ltd, 637 F.3d at 723, and “defendants may [consequently] well be forced - even if they have a strong case on the merits - to settle to avoid the risk of a catastrophic judgment.” Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 492 (7th Cir. 2014).

         Class certification requires the plaintiff to show, by a preponderance of the evidence, that four requirements of Fed.R.Civ.P. 23(a) are met:

(1) the class is so numerous that joinder of all members is impracticable (numerosity);
(2) there are questions of law or fact common to the class (commonality);
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and
(4) the representative parties will fairly and adequately protect the interests of the class (adequacy of representation).

Fed.R.Civ.P. 23(a); Steimel v. Wernert, 823 F.3d 902, 917 (7th Cir. 2016); Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 373 (7th Cir. 2015). In addition to meeting these requirements, the class must satisfy one of the four conditions in Fed.R.Civ.P. 23(b). Bell, 800 F.3d at 373.

         In this case, the plaintiff seeks certification under Fed.R.Civ.P. 23(b)(3), which applies to class actions when the purported class seeks monetary damages. The rule allows for class certification when “questions of law or fact common to the class members predominate over any questions affecting individual members, ” and when a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3); Bell, 800 F.3d at 373. Predominance is similar to Rule 23(a)'s requirements for typicality and commonality, but the predominance criterion is far more demanding. McCaster v. Darden Restaurants, Inc., 845 F.3d 794, 800 (7th Cir. 2017). The need for rigorous analysis of a motion to certify a class is for the protection not of the defendants alone, but of the class members as well. CE Design Ltd., 637 F.3d at 723.

         A. Numerosity

         There is no dispute that plaintiff satisfies the numerosity requirement. [Dkt. #215, at 14-16]. Defendants have admitted that they sent the 36 faxes plaintiff attached to their Complaint to the plaintiff's fax number. At the very least, the plaintiff's evidence - unchallenged by the defendants - shows that defendants sent faxes to over 17, 000 fax numbers in Class B. [Dkt. #204-1, at 9]. Well over 100, 000 faxes were sent in Class A. As such, even without an exact determination of size, “it's reasonable to believe it large enough to make joinder impracticable and thus justify a class action suit.” Arnold Chapman & Paldo Sign & Display Co., 747 F.3d at 492. Whether the class members actually have valid claims is a matter for another day. Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014).

         B. Commonality

         The Supreme Court has explained that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury'” at the hands of the same defendant. Wal-Mart Stores, Inc., 564 U.S. at 349-50; McCaster, 845 F.3d at 800. It's not enough for the plaintiffs to show that class members have all suffered a violation of the same provision of law.” Wal-Mart, 564 U.S. at 350; McCaster, 845 F.3d at 800. “Instead they must show that ‘the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members.'” McCaster, 845 F.3d at 800. Conduct common to members of the class is critical; the class members' claims must depend on a common contention that is “capable of classwide resolution.” Wal-Mart, 564 U.S. at 350: McCaster, 845 F.3d at 800.

         Class certification is common in TCPA litigation because the main questions, such as whether a given fax is an advertisement, are common to all recipients. Turza, 728 F.3d at 684. “[F]or purposes of Rule 23(a)(2) ‘[e]ven a single [common] question' will do.” Wal-Mart, 564 U.S. at 359. Here, the plaintiff submits there are four questions common to all fax recipients: whether the faxes are advertisements; whether each defendant is a sender, whether opt-out notices comply with 47 CFR §64.1200(a)(4)(iii); and whether the defendants willfully or knowingly violated the TCPA such that treble damages are available. [Dkt. #204-1, at 12]. In its reply brief, it adds the question of whether the FCC can grant a retroactive waiver of the opt-out notice requirement that applies to litigation between parties. The plaintiff submits that “[t]hese questions can be answered classwide, and doing so will resolve the entire case . . . .” [Dkt. #204-1, at 12].

         While answering these questions will not resolve the entire case - there are the matters of express permission and established business relationship - those two points do not scuttle commonality. As already noted, just a single common question will suffice. Wal-Mart, 564 U.S. at 359. The questions plaintiff submits are clearly capable of classwide resolution. The recipients received the same faxes, and so the questions of whether the fax was an advertisement, who the sender was, whether the fax contains a proper opt-out notice, are all common questions. The same is true of whether defendants acted intentionally and whether the defendants' waiver is applicable here.

         The defendants do not really make a serious challenge to plaintiff's commonality showing. They argue that plaintiff's claims are not common to the class because plaintiff may not even have been the intended recipient of some of the faxes. Brodsky v. HumanaDental Ins. Co., 2014 WL 2780089 (N.D.Ill. June 12, 2014). [Dkt. #215, at 15] is relied on. But oddly and inexplicably defendants overlooked the fact that Brodsky reconsidered its statement that a plaintiff could not recover unless he was the intended recipient of the fax. See Brodsky v. HumanaDental Ins. Co., 2014 WL 4813147 (N.D. Ill. Sept. 29, 2014). In the wake of the Seventh Circuit's holding in Chapman v. Wagener Equities, Inc., 747 F.3d 489, 491 (7th Cir. 2014), the district court determined that all that mattered was whether the plaintiff was the owner of the fax machine; whether the fax number was his. 2014 WL 4813417, at 3.

         C. Typicality

         The typicality requirement “primarily directs the district court to focus on whether the named representatives' claims have the same essential characteristics as the claims of the class at large.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). Typicality requires “enough congruence between the named representative's claim and that of the unnamed members of the class to justify allowing the named party to ligate on behalf of the group.” Spano v. The Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011). “Even though some factual variations may not defeat typicality, the requirement is meant to ensure that the named representative's claims have the same essential characteristics as the claims of the class at large.” Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. ...


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