United States District Court, N.D. Illinois, Eastern Division
KIMBERLY SMITH, STEVEN SMITH and OLWEN JAFFE, individually and on behalf of all others similarly situated, Plaintiffs,
PREMIER DERMATOLOGY, FOREFRONT MANAGEMENT, LLC, and ERELEVANCE CORPORATION, Defendants.
MEMORANDUM OPINION AND ORDER
JORGE ALONSO UNITED STATES DISTRICT JUDGE
Kimberly Smith, Steven Smith, and Olwen Jaffe, bring this
putative class action under the Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227, et
seq., against defendants, Premier Dermatology, Forefront
Management, LLC, and eRelevance Corporation. The case is
before the Court on defendants' motion for summary
judgment. For the following reasons, the motion is granted.
eRelevance Corporation (“eRelevance”) is in the
business of providing “mobile marketing services,
” especially for “physician groups, surgery
centers, or other health care providers.” (Pl.'s LR
56.1 Resp. ¶¶ 1, 8, ECF No. 119 (Sealed), ECF No.
116 (Redacted).) In particular, eRelevance maintains a
“proprietary software system” that it uses
“to send marketing communications . . ., including text
messages, ” to its clients' patients or customers.
(Id. ¶ 11.) Generally, eRelevance's clients
submit a list of customer or prospective customer contact
information, which is uploaded to the eRelevance system, and
they select “‘criteria' for which types of
contacts they wish to reach.” (Defs.' LR 56.1 Resp.
¶¶ 10, 13, ECF No. 137 (Sealed), ECF No. 132
(Redacted).) Based on the criteria clients select, the
eRelevance system creates a list of contacts from its
database, and eRelevance employees build a text-message
marketing campaign by customizing template text messages to
fit the clients' specifications. (Id.
¶¶ 15-16.) An eRelevance employee then presses a
button to run the campaign, and the eRelevance system
automatically sends text messages to each of the contacts in
the list. (Id. ¶ 17.)
to eRelevance, the system “does not currently have, and
has never had, the capacity to generate random or sequential
telephone numbers”; it relies entirely on
client-provided contact information, which it filters to
select phone numbers to which to send text messages.
(Pl.'s LR 56.1 Resp. ¶ 15, see Id.
¶¶ 14-21.) Plaintiffs do not directly dispute this
fact, although they purport to dispute it by pointing out
that eRelevance's “ruby virtual machine, ”
the component of its system that actually sends the text
messages, can be “programmed to do anything that is
computationally possible.” (Id. ¶ 15
(internal quotation marks and alterations omitted).)
receiving a number of text messages from eRelevance sent on
behalf of defendants Premier Dermatology and Forefront
Management, LLC, plaintiffs brought this suit, alleging that
defendants violated the Telephone Consumer Protection Act
(“TCPA”) by sending them text messages via an
“automatic telephone dialing system” without
their consent, see 47 U.S.C. § 227. Defendants
now move for summary judgment.
Court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Wackett v. City of Beaver Dam,
642 F.3d 578, 581 (7th Cir. 2011). A genuine dispute of
material fact exists if “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). The Court may not weigh conflicting
evidence or make credibility determinations, but the party
opposing summary judgment must point to competent evidence
that would be admissible at trial to demonstrate a genuine
dispute of material fact. Omnicare, Inc. v. UnitedHealth
Grp., Inc., 629 F.3d 697, 705 (7th Cir. 2011);
Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.
2009). The court will enter summary judgment against a party
who does not “come forward with evidence that would
reasonably permit the finder of fact to find in [its] favor
on a material question.” Modrowski v. Pigatto,
712 F.3d 1166, 1167 (7th Cir. 2013). The Court construes all
facts and draws all reasonable inferences in favor of the
nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d
337, 341 (7th Cir. 2016).
pertinent part, the TCPA provides as follows:
It shall be unlawful . . .
(A) to make any call (other than a call made
for emergency purposes or made with the prior express consent
of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice--
(iii) to any telephone number assigned to a
. . . cellular telephone service, . . . unless such call is
made solely to collect a debt owed to or guaranteed by the
United States[.] . . .
(3) Private right of action
If the court finds that the defendant willfully or knowingly
violated this subsection or the regulations prescribed under
this subsection, the court may, in its discretion, increase
the amount of the award to an amount equal ...