United States District Court, N.D. Illinois, Eastern Division
PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs,
ALLSCRIPTS HEALTH SOLUTIONS, INC. and ALLSCRIPTS HEALTHCARE LLC, Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
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). 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.
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
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 -
to the motion for class certification.
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
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).
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].
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.
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).
FACTS OF THE CASE
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.
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
Complaint, which appears to be based on earlier Complaints in
other cases,  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].
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).
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.
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.).
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].
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
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. 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).
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. 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.
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.
THE PUTATIVE CLASSES
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].
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].
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.”).
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.
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).
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
(2) there are questions of law or fact common to the class
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class (typicality);
(4) the representative parties will fairly and adequately
protect the interests of the class (adequacy of
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.
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.
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).
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.
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].
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.
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.
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. ...