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Smith v. Premier Dermatology

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

September 9, 2019

KIMBERLY SMITH, STEVEN SMITH and OLWEN JAFFE, individually and on behalf of all others similarly situated, Plaintiffs,



         Plaintiffs, 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.


         Defendant 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.)

         According 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).)

         After 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.


         “The 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).

         In pertinent part, the TCPA provides as follows:

(1) Prohibitions
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 ...

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