FLORENCE MUSSAT, M.D., S.C. v. Power Liens LLC
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 7/21/2014:Mailed notice(rth, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FLORENCE MUSSAT, M.D., S.C., an
Illinois corporation, individually and on
behalf of a class,
Plaintiffs,
v.
POWER LIENS, LLC,
Defendant.
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No. 13-cv-7853
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff, Florence Mussat, M.D., S.C. (“Mussat”), filed a two-count Amended Complaint
against Defendant, Power Liens LLC (“Power Liens”), seeking class action status and alleging
violations of the Telephone Consumer Protection Act (“TCPA”), 42 U.S.C. § 227 et seq. (Count I)
and the Illinois Consumer Fraud Act (“ICFA”), 815 ILCS § 505/2 et seq. (Count II). Power Liens
moves to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim [21]. For the reasons stated herein, the Court grants in part and denies in part
Power Liens’ motion.
Background
On October 18, 2012, Mussat received a one-page unsolicited fax advertisement sent from
Power Liens to promote Power Liens’ goods and services. The fax, written on Power Liens’
stationary and marked “TIME SENSITIVE,” states:
Dear Doctor or Office Manager,
Per a number of requests, we’ve added a new feature to our website,
www.PowerLiens.com, allowing attorneys to narrow their doctor searches by
“Transportation Provided.” If your office offers transportation services to your
clients, please let us know so that we can make sure it is properly reflected on our
website. Our results show that the more specific you are about the services you offer,
the more attorneys will call your office.
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You can update your listing information by either:
• Filling out the form below and faxing it back to 310-882-5512
• Emailing your information to info@powerliens.com
• Calling us at 800-680-5526
Office / Doctor Name: ____________________________
Phone number: __________________________________
Does your office provide transportation to patients?
YES, we provide transportation
Sometimes
NO, we do not provide transportation
Thanks!
Jason & the Power Liens Team
The bottom of the fax instructs recipients to contact Power Liens, “[f]or information on how to
secure an exclusive zone in your territory and locking out your nearby competition…”. Mussat
alleges this fax is part of a marketing campaign to sign up physicians for a preferred listing on Power
Liens’ website in exchange for a monthly fee. Mussat also alleges that it has never had a business
relationship with Power Liens and has not consented to receipt of the fax. Mussat estimates that this
fax has been sent to 40 other individuals or businesses.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Federal Rule of
Civil Procedure 8(a)(2) sets forth the basic pleading requirement of a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8 does
not require a plaintiff to plead particularized facts, the factual allegations in the complaint must
sufficiently raise a plausible right to relief above a speculative level. Arnett v. Webster, 658 F.3d 742,
751–52 (7th Cir. 2011). When considering a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all well-pleaded factual
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allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
Discussion
Power Liens moves to dismiss both counts of the Amended Complaint. Count I alleges that
Power Liens violated the Telephone Consumer Protection Act (“TCPA”), 42 U.S.C. § 227 et seq., by
sending the fax described above. TCPA prohibits the use of a fax machine to send unsolicited
advertisements. 42 U.S.C. § 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).
Power Liens argues that the fax it sent to Mussat is not an “unsolicited advertisement”
because it does not advertise the commercial availability of any goods or services. Instead, Power
Liens contends that where a fax is primarily informational, the fact that there may be a potential
future commercial benefit to the sender does not change the underlying message into an
advertisement. See N.B. Industries v. Wells Fargo & Co., No. C 10-03203 LB, 2010 WL 4939970, 2010
U.S. Dist. LEXIS 126432 (N.D. Cal. Nov. 30, 2010) (complaint dismissed because the court found
the fax was an application for an award that did not constitute an unsolicited advertisement).
However, “the inquiry is not whether there is an ancillary commercial benefit to either party but
instead whether the message is an advertisement (or a pretext for an advertisement). Id. at 2010 U.S.
Dist. LEXIS 126432, *26.
Mussat has adequately alleged a violation of the TCPA. While the fax is informational in that
it informs the recipient of Power Liens’ services, this fact does not alter the underlying commercial
message. The fax does not fall under the “informational” exception to unsolicited advertisements as
Power Liens asserts. The Amended Complaint alleges that this fax is part of a marketing campaign
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to sign up physicians for a preferred listing on Power Liens’ website in exchange for a monthly fee.
(Dkt. 16, Amend. Compl. ¶ 13). In North Suburban Chiropractic Clinic, Ltd. v. Merck & Co., 13-cv-3113,
2013 WL 5170754, 2013 U.S. Dist. LEXIS 130885 (N.D. Ill. Sept. 13, 2013) (St. Eve, J.), the court
found a similarly stated allegation sufficient to state a claim for a TCPA violation. Indeed, Power
Liens is inviting recipients to contact it to “secure an exclusive zone in your territory and [lock] out
your nearby competition.” This is clearly an offer to make use of Power Liens’ commercial services.
Mussat also adequately alleges that it had no ongoing or prior business relationship with Power
Liens and that it had not consented to receive faxes from Power Liens. (Dkt. 16, Amend. Compl. ¶¶
15-16.) The generic address of the fax, “Dear Doctor or Office Manager,” bolsters the allegation of
a lack of prior business relationship. Further, the offer itself suggests that Power Liens is seeking to
establish a relationship rather than a communication made as part of an ongoing relationship. Power
Liens offers a portion of its website as evidence of the prior business relationship.
Courts may, at their discretion, take judicial notice of the contents of a website. See Denius v.
Dunlap, 330 F.3d 919, 926 (7th Cir. 2003). 1 This Court declines to take judicial notice of Power
Liens’ website in order to show the existence of a business relationship. The Internet however
contains a wide variety of information with varying levels of reliability and a court is not required to
take judicial notice of a website’s content. Cf. Pickett v. Sheridan Health Care Ctr.,664 F.3d 632, 648
(7th Cir. 2011); see also Felty v. Driver Solutions, LLC, No. 13-cv-2818, 2013 WL 5835712, at *3 (N.D.
Ill. Oct. 30, 2013) (Kocoras, J.) (“Due to the evolving nature of websites, this Court is neither
required nor inclined to take judicial notice of any website material at this time.”). This Court finds
that Power Liens’ website, without more, is not sufficiently reliable for this Court to take judicial
This Court previously ruled that it could consider the portion of the website attached to Power Liens’ Motion to
Dismiss without converting the motion to a Rule 56 Motion for Summary Judgment. Nothing in that ruling requires this
Court to take judicial notice of the contents of the website if it lacks the requisite indicia of reliability pursuant to Fed. R.
Evid. 201(b)(1), (2).
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notice of its contents as evidence of a prior business relationship with Mussat. Accordingly, Mussat
adequately alleges a violation of the TCPA.
Count II of the Amended Complaint alleges violation of the Illinois Consumer Fraud Act
(“ICFA”), 815 ILCS 505/2 et seq. The ICFA prohibits “[u]nfair methods of competition and unfair
or deceptive acts or practices… in the conduct of any trade or commerce….” 815 ILCS 505/2. To
determine whether the alleged conduct is unfair, courts consider: “(1)whether the practice offends
public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it
causes substantial injury to consumers.” Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417-18,
775 N.E.2d 951, 961 (2002). Power Liens moves to dismiss Count II, arguing that Mussat has not
met any of the Robinson factors.
The first factor weighs in favor of Mussat because “there is little dispute that the alleged
practice of sending unsolicited fax advertisement offends public policy.” Stonecrafters, Inc. v. Foxfire
Printing and Packaging, Inc., 633 F.Supp.2d 610, 616 (N.D. Ill. 2009) (citing Centerline Equipment Corp. v.
Banner Personnel Serice, Inc., 545 F.Supp.2d 768, 780 (N.D. Ill. 2008); W. Ry. Devices Corp. v. Lusida
Rubber Prods., Inc., No. 06 C 0052, 2006 WL 1697119, 2006 U.S. Dist. LEXIS 43867 (N.D. Ill. June
13, 2006)). Under the second factor, “[a] practice may be considered immoral, unethical, oppressive,
or unscrupulous if it imposes a lack of meaningful choice or an unreasonable burden on the
consumer.” Stonecrafters, 633 F.Supp.2d at 616. On the one hand, Mussat does not, as simply the
recipient, have a meaningful choice in receiving the fax or faxes from Power Liens. On the other
hand, one unsolicited fax does not rise to the level of immoral, unethical, oppressive, or
unscrupulous as contemplated by the ICFA. 2 Power Liens’ single, one-page fax cannot be said to
burden Mussat to an oppressive level. Thus, the second factor weighs in favor of Power Liens. “A
practice causes substantial injury to consumers if it causes significant harm to the plaintiff and has
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In a Motion for Leave to Correct Defendant’s Two Factual Misrepresentations to the Court, Mussat argues that it
received a second fax from Power Liens on December 9, 2012.
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the potential to cause injury to a large number of consumers.” Stonecrafters, 633 F.Supp.2d at 617
(quoting Wilson v. Harris N.A., No. 06-CV-05840, 2007 U.S. Dist. LEXIS 65345, 2007 WL 2608521,
at *8 (N.D. Ill. Sept. 4, 2007) (Pallmeyer, J.)(internal quotation marks omitted). One or two sheets of
paper, the minimal toner, and the few seconds of a person’s time expended in response to the
unsolicited fax do not amount to a substantial injury. Even taking Mussat’s allegations as true, that
the fax was sent to as many as 40 individuals or businesses, the loss is de minimis. See Stonecrafters, 633
F.Supp.2d at 617 (noting that even a thousand people suffering damages of a couple of pennies
would only result in an aggregate harm of $20). Accordingly, under the axiom de minimis non curat lex,
or “the law does not concern itself with trifles” the third factor weighs in favor of Power Liens.
Since two of the three Robinson factors weigh in favor of Power Liens, this Court finds that Count II
should be dismissed.
Conclusion
For the foregoing reasons, this Court grants Power Liens’ Motion to Dismiss with respect to
Count II, the ICFA claim, and denies the Motion to Dismiss with respect to the TCPA claim in
Count I. Defendant to file Answer to Count I of the Amended Complaint within 21 days of entry of
this Order. Additionally, Mussat’s Motion for Leave to Correct Defendant’s Two Factual
Misrepresentations to the Court [36] is denied. Status hearing set for 8/18/2014 at 9:00 a.m.
IT IS SO ORDERED.
Date: July 21, 2014
Entered: ______________________________
United States District Judge
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