Practice Management Support Services, Inc. v. Cirque Du Soleil Inc. et al
MEMORANDUM Opinion and Order: The Court grants Practice Management's motion for class certification in part R. 68 , appoints Practice Management as class representative, and appoints the law firms of Anderson + Wanca and the Margulis Law Group as class counsel. The Court also grants defendants' motions for leave to file supplemental authority R. 140 ; R. 148 ; R. 150 .The Court finds that the Supreme Court's ruling in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017), prevents it from exercising personal jurisdiction over defendants with respect to the claims of non-Illinois-resident class members. The Court therefore defines the class, for current purposes, as: All pers ons who are residents of Illinois and all entities located in Illinois who were successfully sent a facsimile in Illinois containing the "Cirque du Soleil"trade name from January 29, 2009, through July 8, 2009, offering tickets for sale to the to the following performances: "Saltimbanco" at Rockford MetroCentre, Rockford, Illinois, opening February 25, 2009; and "A New Twist on Vaudeville" at Chicago Theatre, Chicago, Illinois, opening November 19, 2009.The Court se ts a status conference for March 20, 2018, at which the parties should be prepared to report on next steps in this litigation. If the parties believe that modifications should be made to the current class definition, they can raise that issue at the status conference, and the Court may allow the parties to file short position papers on that limited issue. Status hearing set for 3/20/2018 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 3/12/2018:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
PRACTICE MANAGEMENT SUPPORT
SERVICES, INC., an Illinois corporation,
individually and as the representative of
a class of similarly-situated persons,
CIRQUE DU SOLEIL INC., CIRQUE DU
SOLEIL (US), INC., AND JOHN DOES 1-10,
No. 14 C 2032
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
In this class action lawsuit, plaintiff Practice Management Support Services,
Inc. challenges the alleged practice of defendants Cirque du Soleil, Inc., and Cirque
du Soleil (US), Inc., of using a fax broadcasting service to advertise theatrical shows
without providing sufficient instructions about how to opt out, in violation of the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The eight-year
procedural history of this case is set forth in two prior orders. R. 63; R. 116. The
parties have litigated a variety of procedural issues in state and federal court, and
they have engaged in protracted discovery three times. R. 116 at 2. Currently before
the Court is Practice Management’s motion for class certification (R. 68). For the
reasons explained below, the Court grants that motion in part.1
The Court has considered the supplemental authority defendants have
provided, and so the Court also grants defendants’ motions to supplement (R. 140;
R. 148; R. 150).
Defendants produce theatrical shows worldwide under the “Cirque du Soleil”
trade name. In January 2009, one or both of the defendants contracted with a fax
broadcasting company called ProFax to market shows to a list of fax numbers
purchased from list providers. R. 68-6 at 18-19; R. 68-5 at 15-17; R. 68-8. A single
employee of defendants was in charge of communicating with ProFax with respect
to all of the fax blasts at issue in this case, and two other employees were
responsible for determining what fax target lists would be sent to Profax. R. 68-6 at
41-44. Defendants’ employees do not recall calling any companies on the lists to
seek permission to send the faxes. R. 68-6 at 46-47; R. 68-5 at 26.
Transmission logs showing precisely to whom faxes were successfully sent by
ProFax at defendants’ direction no longer exist. ProFax sends its clients
transmission logs via email providing the date and time of each transmission and
whether it was successful, but that data is deleted in less than six months unless a
client requests that it be retained. R. 68-7 at 19-20. ProFax could not find any of the
fax transmission logs for defendants’ account. Id. Defendants’ employee in charge of
communicating with ProFax testified that he deleted the transmission logs soon
after receiving them because they were “heavy files.” R. 68-6 at 31-36, 92.
Practice Management did obtain through discovery in this litigation 21
ProFax invoices associated with defendants’ account that show the total number of
faxes successfully sent by ProFax on certain dates (as well as the total number of
faxes attempted that were not successful). R. 68-4; R. 68-7 at 12-13. The ProFax
invoices correspond with 16 different ads for which plaintiffs obtained images
during discovery. See R. 68-3; R. 68-4; R. 68-10.2 Practice Management also
obtained four fax target lists—i.e., excel spreadsheets showing names, addresses,
fax numbers, and other data for fax targets. R. 68-11.
Practice Management’s expert Robert Biggerstaff produced a report adding
together the number of faxes shown as sent in the ProFax invoices for the 16 ads,
calculating a total of 40,146 successfully sent faxes. R. 68-10 at 8-9. Biggerstaff also
matched four of the ProFax invoices to the four fax target list excel spreadsheets. R.
68-10 at 8-9. He concluded that a spreadsheet titled “cirRockford.xls” corresponds
“cirROCKFORD_school.xls” corresponds with the invoice for “Rockford Schools,” a
spreadsheet titled “List_Chicago_Vaudeville _Faxblast_June 2009” corresponds
“List_Colorado.xls” corresponds with the invoice for “Denver Group Fax.” Id. at 9.
A large percentage of the entries in three of these spreadsheets appear to be
for Illinois businesses and residents. In the “cirRockford.xls” spreadsheet, 3,927
(82%) of the addresses show “IL” as the “PRIMARY_STATE.” Id. at 7. In the
“cirROCKFORD_school.xls” spreadsheet, 730 (79%) of the addresses show “IL” as
the “PRIMARY_STATE.” Id. In the “List_Chicago_Vaudeville _Faxblast_June 2009”
spreadsheet, 10,869 (94%) of the addresses show “IL” as the “PRIMARY_STATE.”
The invoices also refer to other ads for which “no fax image [was] produced in
discovery . . . and therefore [Practice Management] has not moved to certify as to
these successfully sent fax advertisements.” R. 68-1 at 9.
Id. In the “List_Colorado.xls” spreadsheet, by contrast, all of the addresses show
“CO” as the “PRIMARY_STATE.” Id.
The ad sent to Practice Management and attached to the complaint in this
case contains the following opt-out notice at the bottom in fine print:
To opt out from future faxes go to www.deletemyfaxnumber.com. Enter
pin # 15263 or call 877-284-7878. The recipient may make a request to
the sender not to send any future faxes and failure to comply with the
request within 30 days is unlawful.
R. 1 at 12; R. 68-7 at 9. Practice Management alleges that this opt-out notice was
deficient (although its complaint does not specify why). R. 1 ¶ 19. ProFax retained
an opt-out list associated with defendants’ account, which is comprised of 935 fax
numbers. R. 153 at 4; R. 161 at 3.
To be certified, a putative class must satisfy the four prerequisites of Federal
Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of
representation. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th
Cir. 2012). The action also must satisfy at least one of the three subsections of Rule
23(b). Id. Here, plaintiffs seek certification under Rule 23(b)(3), which requires a
finding that “questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class action is superior
to other available methods for the fair and efficient adjudication of the controversy.”
“Plaintiffs bear the burden of showing that a proposed class satisfies the Rule
23 requirements.” Messner, 669 F.3d at 811. “The Rule does not set forth a mere
pleading standard”; rather, the plaintiff must satisfy Rule 23 “through evidentiary
proof.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). “It is sufficient if each
disputed requirement has been proven by a preponderance of the evidence.”
Messner, 669 F.3d at 811. “Such an analysis will frequently entail ‘overlap with the
merits of the plaintiff’s underlying claim.’” Comcast, 569 U.S. at 33-34 (quoting WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). But “[m]erits questions may be
considered . . . only to the extent . . . that they are relevant to determining whether
the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn.
Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013).
District courts have “broad discretion” when determining whether a proposed
class satisfies Rule 23. Howland v. First Am. Title Ins. Co., 672 F.3d 525, 528 (7th
Cir. 2012); see also Dukes, 564 U.S. at 369 (“[M]ost issues arising under Rule 23 . . .
[are] committed in the first instance to the discretion of the district court.”).
“Class certification is normal” under the TCPA “because the main questions,
such as whether a given fax is an advertisement, are common to all recipients.” Ira
Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013). Judges in this district
have certified dozens of TCPA fax cases. See R. 68-1 at 11 n.7 (collecting cases). And
this case does not implicate the individualized consent issues that have been held to
defeat class certification in a number of recent cases applying the Federal Circuit’s
decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir.
2017), cert. denied sub nom. Bais Yaakov of Spring Valley v. F.C.C., 2018 WL
942804 (U.S. Feb. 20, 2018). See, e.g., Alpha Tech Pet Inc. v. LaGasse, LLC, 2017
WL 5069946, at *4-8 (N.D. Ill. Nov. 3, 2017); Brodsky v. HumanaDental Ins. Co.,
269 F. Supp. 3d 841, 849-51 (N.D. Ill. 2017).
Although defendants pull out all the stops, including in several motions to
cite supplemental authority that are in reality lengthy additions to their class
certification opposition, they do not raise any arguments that differentiate this case
sufficiently from the many other TCPA cases in which class certification has been
granted under this Circuit’s law. The Court does, however, find that the Supreme
Court’s recent ruling in Bristol-Myers Squibb Co. v. Superior Court of California,
San Francisco Cty., 137 S. Ct. 1773 (2017)—addressed in defendants’ third motion
for leave to file supplemental authority (R. 150)—prevents this Court from
exercising personal jurisdiction over non-Illinois-resident class members.
As a threshold matter, defendants take issue with what they characterize as
Practice Management’s belated attempt to revise and broaden the scope of its class
claims. They say that class certification should be denied outright on this basis.
Practice Management’s complaint identified the following class:
All persons who (1) on or after April 19, 2007, (2) were sent telephone
facsimile messages of material advertising the commercial availability
of any property, goods, or services by or on behalf of Defendants, (3)
from whom Defendants did not obtain prior express permission or
invitation to send those faxes, (4) with whom Defendants did not have
an established business relationship and (5) which did not display a
proper opt out notice.
R.1 at 4. Practice Management now seeks to certify the following class:
All persons or entities who were successfully sent a facsimile from
“Cirque du Soleil” from January 29, 2009, through July 8, 2009,
offering tickets for sale to the following performances: 
“Saltimbanco” at Rockford MetroCentre, Rockford, Illinois, opening
February 25, 2009;  “A New Twist on Vaudeville” at Chicago
Theatre, Chicago, Illinois, opening November 19, 2009;  “Kooza” at
Pepsi Center Grounds, Denver, Colorado, opening August 20, 2009; 
“Kooza” at Santa Monica Pier, Santa Monica, California, opening
October 16, 2009;  “Kooza” at Orange County Great Park, Irvine
California, opening January 7, 2010;  “Kooza” at the
Broadway/Kellog Lot, St. Paul, Minnesota, opening July 3, 2009; 
“Saltimbanco” at Conseco Fieldhouse, Indianapolis, Indiana, opening
February 12, 2009;  “Saltimbanco” at USA Mitchell Center, Mobile,
Alabama, opening April 2, 2009;  “Saltimbanco” at Sommet Center,
Nashville, Tennessee, opening April 9, 2009;  “Saltimbanco” at
North Charleston Coliseum, North Charleston, South Carolina,
opening April 22, 2009;  “Saltimbanco” at Von Braun Center,
Huntsville, Alabama, opening April 15, 2009.
R. 68 at 2.3
Defendants argue that Practice Management’s revised class definition
expands the scope of the putative class impermissibly in two different ways: (1) the
first definition was “based on the single July 7, 2009 Ad featuring the Vaudeville
show,” whereas the new definition focuses on “18 fax broadcasts involving 15
completely different faxes on different dates promoting two separate touring
shows”; and (2) the original definition focused on faxes advertising “Defendants’
goods and services,” whereas the new definition focuses on faxes sent “from ‘Cirque
du Soleil.’” R. 125 at 12. Both arguments misconstrue the class definitions.
With respect to the first argument, Practice Management did not limit its
class definition in its complaint to fax broadcasts of the July 7, 2009 Vaudeville ad.
Although only 11 shows are listed in Practice Management’s class definition,
some of the shows had several different ads associated with them. See R. 68-1 at 911; R. 68-3. Thus, the 16 different ads for which Practice Management obtained
images during discovery correspond with the 11 shows listed in Practice
Management’s proposed class definition.
Although the complaint pleaded that Practice Management received the July 7,
2009 Vaudeville ad, R. 1 at 3, the complaint’s class definition included “[a]ll
persons” who were sent ad faxes “by or on behalf of Defendants” any time “on or
after April 19, 2007” that failed to comply with TCPA opt-out notice requirements.
Id. at 4. The complaint further alleges that defendants sent “the same and similar
unsolicited facsimiles” to the class, and that the class covered “Exhibit A [the July 7,
2009 Vaudeville ad] and other unsolicited faxed advertisements.” R. 1 at 4, 5
(emphasis added). Practice Management’s revised class definition thus narrows
rather than broadens the scope of the class to focus on specific ads—namely, ads for
which Practice Management obtained the fax image and a corresponding ProFax
invoice in discovery. And as defendants acknowledge (R. 125 at 6), these fax images
and corresponding invoices were all produced during discovery as part of an earlier,
related federal action (see id. at 6, 22; R. 125-1), so their inclusion cannot have come
as a true surprise to defendants.
Defendants’ second argument is based on another misreading of the
complaint’s class definition. Defendants claim that the complaint’s class definition
was limited to “people who received faxes advertising Defendants’ goods and
services.” R. 125 at 12. In fact, the complaint definition included “persons . . . sent
telephone facsimile messages of material advertising the commercial availability of
any property, goods, or services by or on behalf of Defendants.” R. 1 at 4 (emphasis
added). This definition did not limit the class to recipients of fax advertisements for
“Defendants’ goods and services.” Rather, it defined the class as recipients of fax
advertisements for “any” goods and services as long as they were “sent . . . by or on
behalf of Defendants.”
As Practice Management explains, it based the definition in its complaint on
the FCC regulation defining the “sender” of a fax advertisement as a “person or
entity on whose behalf a facsimile unsolicited advertisement is sent . . . .” 47 C.F.R.
§ 64.1200(f)(1). Practice Management indicates that it changed “by or on behalf of
Defendants” to “from ‘Cirque du Soleil’” in its revised class definition to avoid a failsafe problem created when a class definition is too closely tied to the statutory
elements. As this Court has previously explained, “[i]n cases . . . under the TCPA, it
can be tempting for a plaintiff to define its class in terms of the statutory elements
that establish liability. . . . But this focus on the terms of liability frequently results
in class definitions that are fail-safe.” Alpha Tech Pet Inc. v. Lagasse, LLC, 205 F.
Supp. 3d 970, 976-77 (N.D. Ill. 2016). A fail-safe class is a problem because “a class
member either wins or, by virtue of losing, is defined out of the class and is
therefore not bound by the judgment.” Messner, 669 F.3d at 825. A definition
focusing on the content of the particular faxes at issue “avoids the problem of a failsafe class because it is grounded in the particular factual circumstances that
allegedly led to [the] injury.” Alpha Tech Pet, 205 F. Supp. 3d at 978.
The Court agrees that Practice Management’s revised definition works to
avoid a fail-safe problem and to make the class ascertainable. See also Mullins v.
Direct Digital, LLC, 795 F.3d 654, 660-61 (7th Cir. 2015) (to be ascertainable, a
class definition must identify “a particular group of individuals . . . harmed in a
particular way . . . during a specific period,” and must not be “defined in terms of
success on the merits” to avoid a fail-safe problem). The Court further takes
Practice Management’s suggestion to change “from ‘Cirque du Soleil’” to “containing
the ‘Cirque du Soleil’ trade name” to make the proposed definition even more clearly
content-based. See R. 137 at 4.
The foregoing discussion shows why defendants’ reliance on Chapman v.
First Index, Inc., 796 F.3d 783 (7th Cir. 2015), in support of their argument for
denying class certification on this threshold basis is misplaced. In Chapman, the
plaintiff sought to change to a theory of TCPA liability based on lack of compliant
opt out notices after the district court held that individualized questions precluded
certification under the plaintiff’s original, consent-based theory of TCPA liability.
Id. at 785. The district court rejected plaintiff’s “attempt to remake a suit more than
four years after it began,” and the Seventh Circuit held that the district court had
not abused its discretion. Id. The issue in Chapman was not that the plaintiff
changed its class definition from the one in its complaint. Indeed, the Chapman
court made clear that a complaint need not even contain a class definition, and “the
obligation to define the class falls on the judge’s shoulders” when certifying a class
action. Id. (citing Fed. R. Civ. P. 23(c)(1)(B)). Rather, the issue in Chapman was
that plaintiff changed the theory of liability late in the case.
Here, unlike in Chapman, Practice Management is not seeking to change its
theory of liability. It always has premised its case on an opt-out notice theory.
Consent is not an issue in this case because there is no claim or evidence of prior
express permission by any fax recipient. Practice Management has simply refined
its class definition between its complaint and its class certification motion to make
it more specific and to avoid a potential fail-safe problem. The Court therefore
declines to deny class certification on this threshold basis identified by defendants.
The Court does, however, note that the class definition will become much narrower
than Practice Management’s current proposed definition based on the Court’s
personal jurisdiction holdings below.
Rule 23(a) Requirements
The Court turns to whether the putative class satisfies the four prerequisites
of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and
adequacy of representation.
The numerosity requirement of Rule 23(a)(1) is satisfied where joinder of all
putative class members is “impracticable.” McCabe v. Crawford & Co., 210 F.R.D.
631, 643 (N.D. Ill. 2002). “[A] class of forty is generally sufficient.” Id. Defendants do
not contest that the numerosity requirement is easily satisfied in this case based on
the numbers of faxes at issue.
Commonality requires the plaintiff to demonstrate that the putative class
members’ “claims . . . depend upon a common contention . . . of such a nature that it
is capable of classwide resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in
one stroke.” Dukes, 564 U.S. at 350.
Practice Management brings only one claim—an alleged violation of the
TCPA. The TCPA prohibits (with certain exceptions) the use of “any telephone
facsimile machine . . . to send, to a telephone facsimile machine, an unsolicited
advertisement.” 47 U.S.C. § 227(b)(1)(C). It also creates a private right of action
allowing the recipient of an unsolicited fax to “recover for actual monetary loss from
such a violation, or to receive $500 in damages for each such violation, whichever is
greater.” 47 U.S.C. § 227(b)(3)(B). To prevail on a claim under the TCPA, a plaintiff
must show that the defendant: “(1) used a telephone facsimile machine, computer or
other device to send a facsimile; (2) the facsimile was unsolicited; and (3) the
facsimile constituted an advertisement.” Hinman v. M & M Rental Center, Inc., 545
F. Supp. 2d 802, 805 (N.D. Ill. 2008). An unsolicited advertisement does not violate
the TCPA, however, if it “contains a notice meeting the requirements under
paragraph 2(D).” 47 U.S.C. § 227(b)(1)(C)(iii). Paragraph 2(D) in turn sets forth a
number of specific requirements, including that the opt-out notice be “clear and
conspicuous.” 47 U.S.C. § 227(2)(D). Practice Management claims that the faxes in
this case were unsolicited advertisements that did not contain compliant opt-out
Addressing a similar TCPA class action involving faxes that lacked compliant
opt-out notices, the Seventh Circuit in Turza explained that “class certification is
normal” in such cases “because the main questions, such as whether a given fax is
an advertisement, are common to all recipients” and have common answers. 728
F.3d at 684. As in Turza, key questions in this case—including whether defendants
qualify as senders,4 whether the faxes were solicited, whether they were
advertisements, whether they contained complaint opt-out notices, and the
appropriate remedies—have common answers that are all “apt to drive the
resolution of the litigation.” Dukes, 564 U.S. at 350. Thus, the Court finds—and
defendants do not dispute—that commonality is satisfied.
“A claim is typical if it  arises from the same event or practice or course of
conduct that gives rise to the claims of other class members and  [the] claims are
based on the same legal theory.” Arreola v. Godinez, 546 F.3d 788, 798 (7th Cir.
Practice Management maintains that typicality is easily satisfied in this case.
It says its claim arises from the same practice or course of conduct as other putative
class members’ claims—namely, defendants’ alleged practice of using a single fax
broadcaster (ProFax) to send, at the direction of the same defendant employees,
unsolicited faxes bearing the Cirque du Soleil trade name to promote shows during
a discrete period of time. And, Practice Management says, its claim and the
putative class members’ claims are based on the same legal theory of unsolicited
advertisements sent without compliant opt-out notices under the TCPA. As Practice
Management explains, courts routinely hold that these facts make a named
The Court further explains why this is a common issue in its typicality
plaintiff’s claim typical in a TCPA case. E.g., Holtzman v. Turza, 2009 WL 3334909,
at *5 (N.D. Ill. Oct. 14, 2009) (“because the course of conduct that produced his
claim also produced the claims of the proposed class, and plaintiff brings the same
TCPA claim that will be advanced by the class, plaintiff's claim is typical of those of
the class”); G.M. Sign, Inc. v. Franklin Bank, S.S.B., 2008 WL 3889950, at *4 (N.D.
Ill. Aug. 20, 2008) (same).
Defendants try to parse the question more finely, arguing that Practice
Management’s claims are not typical because Practice Management was sent only
the single fax attached to the complaint, but it seeks to represent a class of people
or entities sent faxes on different dates advertising other shows. The Eastern
District of Missouri rejected a similar argument in a TCPA fax case where the
defendant sent fax advertisements in ten different broadcasts over two years
targeting physicians in five practice areas and the plaintiff received only the last
broadcast. St. Louis Heart Ctr., Inc. v. Vein Centers for Excellence, Inc., 2013 WL
6498245, at *1, *7 (E.D. Mo. Dec. 11, 2013). The court found the named plaintiff’s
claim typical because the defendant “engaged in a standardized course of conduct
vis-à-vis the putative class members, including [named plaintiff], by faxing
advertisements (via Westfax [a fax broadcasting company]) to thousands of people
at a time.” Id. at *7. The court explained that if any evidence emerged showing that
the opt-out notice provisions were different among groups of faxes, “division of the
class into subclasses may be appropriate,” but as it stood, “the evidence tend[ed] to
show that the advertisements were sent out en masse with virtually identical
content and that [named plaintiff’s] claim is typical of the class.” Id. at *7.
Although it has not addressed a typicality argument like defendants’ in a
TCPA case, the Seventh Circuit rejected a similar argument in the Fair Debt
Collection Practices Act context. In Keele v. Wexler, the Seventh Circuit held that
the named plaintiff’s claim was typical because it was based on the same “course of
conduct” and “legal theory” as other putative class members’ claims, even though
the letter the named plaintiff received was only one of a number of different forms
used by defendants to collect on debts. 149 F.3d 589, 595 (7th Cir. 1998); see also
Keele v. Wexler, 1996 WL 124452, at *1, *3 (N.D. Ill. Mar. 19, 1996). And the
Seventh Circuit in Turza upheld certification of a class where the defendant sent
numerous faxes with the content changing over time, some of which the named
plaintiff received and some of which he did not, without questioning whether the
named plaintiff’s claim was typical. 728 F.3d at 683-84.
In other words, typical does not mean identical. As the Seventh Circuit
explained in Keele, the typicality inquiry “is closely related to the question of
commonality.” 149 F.3d at 595. What matters is whether “a class representative’s
atypical claim may prevail on grounds unavailable to other class members, leaving
them in the lurch,” or whether a class representative’s claim may fail even “though
the claims of other class members may be valid.” CE Design, Ltd. v. King
Architectural Metals, Inc. 637 F.3d 721, 724 (7th Cir. 2011). In Muro v. Target
Corp., 580 F.3d 485 (7th Cir. 2009), for example, the Seventh Circuit held that a
named plaintiff’s claim was not typical where “as a result of . . . differences”
between the named plaintiff’s claim and class members’ claims, “certain provisions
of [the operative statute] that apply in [named plaintiff’s] case may not apply to
most of her proposed fellow class members,” meaning that she may not have an
“incentive to litigate vigorously” on their behalf. Id. at 492-93. Here, unlike in Muro,
the fact that similar-looking advertisements bearing the same Cirque du Soleil
trade name and sent out by ProFax during a discrete period of time were for
different theatrical shows on different dates does not mean that different legal
provisions apply or otherwise change the common questions in this case. See id.5
Nor is Practice Management asserting many separate legal claims like in
Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir. 2000), on which
defendants rely. In Prado-Steiman, the district court “identified ten substantive,
classwide claims” in the class it certified. Id. at 1270. The Eleventh Circuit reversed
and remanded for an assessment of standing, holding that “[w]ithout individual
standing to raise a legal claim, a named representative does not have the requisite
typicality to raise the same claim on behalf of a class.” Id. at 1279. In other words,
at least one named plaintiff had to have standing to assert each claim in order to
satisfy typicality. Id.
Here, defendants do not contest Practice Management’s standing to raise a
TCPA claim based on the fax it was sent. R. 68-1 at 7, 11; R. 68-10; see also, e.g.,
Am.’s Health & Res. Ctr., Ltd. v. Promologics, Inc., 2017 WL 5001284, at *3 (N.D.
Ill. Nov. 2, 2017) (“post-Spokeo [Inc. v. Robins, 136 S. Ct. 1540 (2016)], courts in this
Circuit have repeatedly held that mere receipt of a fax alleged to lack TCPA opt-out
notices constitutes sufficient harm for purposes of Article III standing”) (collecting
cases). And unlike in Prado-Steiman, Practice Management raises only a single
TCPA claim resulting in the same basic injury across class members. See R. 1. In
similar circumstances, other courts have found Article III standing and typicality
satisfied. See, e.g., Hinman, 545 F. Supp. 2d at 805-07 (Article III “does not require
that the class representative’s injury be based on exactly the same fact pattern as
every class member,” and where defendant “sent fax transmissions to the class
under the same general circumstances, those transmissions—if found to violate
the TCPA—would result in the same basic injury to all class members. Therefore,
plaintiffs have Article III standing to pursue the class claims,” and plaintiffs’ claims
Defendants say they have a unique defense against Practice Management
that they do not have against other class members. They maintain that the Practice
Management’s claim “is invalid” because “the July 7, 2009 Ad” that Practice
Management received “does not advertise Defendants’ goods or services.” Instead,
defendants say, the July 7, 2009 ad promotes a show presented and operated by
Cirque du Soleil Burlesco, a separate entity allegedly created for the sole purpose of
operating and receiving revenue from the Vaudeville show. R. 125 at 19. Defendants
imply that other entities may have been created to operate and receive revenue
from the Saltimbanco and Kooza shows promoted in the other ads. See R. 125 at 13.
But this argument misunderstands Practice Management’s legal theory with
respect to the “sender” element of its claim. “The fax sender is defined in federal
regulations as either [a] the person ‘on whose behalf’ the unsolicited ad is sent or [b]
the person whose services are promoted in the ad.” Bridgeview Health Care Ctr.,
Ltd. v. Clark, 816 F.3d 935, 938 (7th Cir. 2016), cert. denied, 137 S. Ct. 200 (2016)
(quoting 47 C.F.R. § 64.1200(f)(10) (defining “sender” as a “person or entity on
whose behalf a facsimile unsolicited advertisement is sent or whose goods or
services are advertised or promoted in the unsolicited advertisement”)). Practice
Management’s theory is not based on the second, services-promoted prong of these
regulations, as to which defendants’ argument would be relevant.6 Instead, Practice
Nor would the fact that defendants’ goods or services were being advertised,
in and of itself, satisfy this second prong. The Seventh Circuit held in Paldo Sign &
Display Co. v. Wagener Equities, Inc., 825 F.3d 793 (7th Cir. 2016), cert. denied, 137
S. Ct. 637 (2017), that a literal interpretation of the “Defendants’ goods or services”
prong “would lead to absurd and unintended results,” where “if a competitor of
Management’s theory is based on the first, on-whose-behalf prong. Practice
Management maintains that defendants are “senders” because they contracted with
ProFax to send unsolicited faxes on their behalf.
And this legal theory is consistent across the class. Crucially, defendants
admit that defendant “Cirque du Soleil, Inc. purchased fax lists and contracted with
and paid ProFax to send the July 7, 2009 Ad promoting the Vaudeville Show.” R.
125 at 7. The evidence supports that it did the same with respect to the other
advertisements at issue. R. 68-8; R. 68-5 at 15, 16. Although the Court need not
decide merits questions at this stage, it notes that this admission and evidence
likely satisfies the standard for “sender” liability recently approved by the Seventh
Circuit in Paldo Sign: a defendant is liable for faxes sent by a fax broadcaster on its
behalf where the defendant “caused by words or conduct the fax broadcaster . . . to
believe reasonably that [defendant] approved the sending of the fax broadcast
transmission.” 825 F.3d at 797. In any event, the question of whether contracting
with and paying ProFax to send ads makes one or more defendants “senders” liable
under the first, on-whose-behalf prong of the regulations is common among Practice
Management and the rest of the putative class—it can be decided in a single stroke.
That also means that Practice Management’s legal theory with respect to the sender
element of its TCPA claim is typical of the rest of the class.
[defendant] sent out ten thousand unsolicited fax advertisements promoting
[defendant’s] services, the resulting lawsuit could bankrupt [defendant] even
though [defendant] played no part in sending the faxes.” Id. at 797. The Paldo Sign
court held that for a defendant to be liable under the second prong of the
regulations, it “must have done something to advertise goods or services.” Id.
In sum, because Practice Management’s claim is based on the same course of
conduct (sending fax blasts through the same fax broadcaster, at the direction of the
same employees, bearing the Cirque du Soleil trade name, and promoting Cirque
shows during a discrete period of time) and legal theory (an opt out notice theory
based on faxes sent on behalf of defendants) as the other class members it seeks to
represent, the Court holds that typicality is satisfied.
Rule 23(a)(4) requires representative parties—both the named plaintiff and
class counsel—to “fairly and adequately represent the class.” Rosario v. Livaditis,
963 F.2d 1013, 1018 (7th Cir. 1992). This requirement deals with “concerns about
the competency of class counsel and conflicts of interest” between the class and its
representatives. Dukes, 564 U.S. at 349 n.5.
First addressing Practice Management’s competency as putative class
representative, Practice Management’s owner John Zulaski filed a declaration
explaining that Practice Management has been involved in the litigation and is
willing to do whatever is necessary to protect the interests of the absent class. R.
68-9 ¶¶ 8, 9. Practice Management rejected an earlier settlement offer based on its
obligations and responsibilities to the class, and it is unaware of any conflicts with
absent class members. Id. ¶¶ 9, 10. Defendants do nothing to counter these
representations or to show that Practice Management is inadequate.
Next turning to putative class counsel’s adequacy, Rule 23(g) describes four
factors for a court to consider: “(i) the work counsel has done in identifying or
investigating potential claims in the action; (ii) counsel’s experience in handling
class actions . . . ; (iii) counsel’s knowledge of the applicable law; and (iv) the
resources that counsel will commit to representing the class.” See Creative
Montessori Learning Centers v. Ashford Gear LLC, 662 F.3d 913, 919 (7th Cir. 2011)
(“In response to growing concerns with the adequacy of representation by class
counsel, Rule 23 was amended in 2003 . . . by the addition of a new subsection, (g),
to guide the court in assessing proposed class counsel as part of the certification
Here, putative class counsel—Anderson + Wanca and the Margulis Law
Group—satisfy all four factors. With respect to the first factor, putative class
counsel have done significant work in identifying or investigating the claim in this
case. Anderson + Wanca have been pursuing claims related to the fax campaign at
issue since 2009. With respect to the second and third factors, putative class counsel
have considerable experience and knowledge of this area of the law. Both Anderson
+ Wanca and the Margulis Law Group have been appointed lead or co-lead counsel
in many TCPA cases. See R. 68-12 (Anderson + Wanca firm resume); R. 68-13
(Margulis firm resume); see also, e.g., CE Design Ltd. v. Cy’s Crabhouse N., Inc., 259
F.R.D. 135, 142 (N.D. Ill. 2009) (Anderson + Wanca’s “experience in TCPA class
action demonstrates that counsel is adequate”); G.M. Sign, Inc. v. Finish Thompson,
Inc., 2009 WL 2581324, at *6 (N.D. Ill. Aug. 20, 2009) (finding Anderson + Wanca
adequate in TCPA case); Turza, 2009 WL 3334909, at *5 (same). Anderson + Wanca
also has filed a petition in the Supreme Court challenging the Sixth Circuit’s
decision in Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d
460 (6th Cir. 2017), addressing issues discussed later in this opinion. See Sandusky
Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., petition for cert. (U.S. Dec. 4,
2017) (No. 17-803). Finally, with respect to the fourth factor, both firms have
“expressly committed to devote adequate human and financial resources to properly
represent their class clients.” Franklin Bank, 2008 WL 3889950, at *4; see R. 68-1 at
16. An analysis under Fed. R. Civ. P. 23(g) thus supports that putative class counsel
will adequately protect the class’ interests.
Defendants argue that the history of this litigation (set forth in more detail in
this Court’s opinion on defendants’ first summary judgment motion, R. 63)
establishes putative class counsel’s inadequacy. They accuse putative class counsel
of “seeking to use tolling and subsequent lawsuits to: (1) excuse their failure to
comply with court orders and deadlines in the [earlier, related] Federal Action; and,
(2) forum shop and judge shop.” R. 125 at 21 (citing in support prior summary
As an initial matter, the Court takes issue with defendants’ “incorpor[ation]
by reference” of their summary judgment briefing to support their adequacy
argument, which “effectively negate[s]” the local rule’s page-limit requirements
(that defendants were already given leave to exceed). See, e.g., Miller UK Ltd. v.
Caterpillar, Inc., 292 F.R.D. 590, 592 (N.D. Ill. 2013). Defendants also filed a
lengthy motion for leave to file supplemental authority and corresponding reply
addressing this issue. R. 140. Although the Court does not deny defendants’ motion
for leave to file supplemental authority, it does find defendants’ back-door
circumvention of page limits inappropriate.
The Court also disagrees with defendants that the circumstances here are
akin to those in Physicians Healthsource, Inc. v. Allscripts Health Solutions, Inc. &
Allscripts Healthcare, LLC, 254 F. Supp. 3d 1007 (N.D. Ill. 2017)—the supplemental
authority defendants cite in support of their adequacy argument. In Physicians
Healthsource, Magistrate Judge Cole recognized that under Seventh Circuit
precedent, “[n]ot any ethical breach justifies the grave option of denying class
certification.” Id. at 1032. But Judge Cole found that based on the facts in that case,
putative class counsel had “jeopardize[d] the court’s ability to reach a just and
proper outcome.” Id. Those facts included the filing of false interrogatory responses
and related credibility issues in a deposition, difficulty meeting discovery deadlines,
and “difficulties with page limitations.” Id. at 1030-33. Judge Cole found that this
misconduct satisfied the Seventh Circuit’s standard of prejudicing the class or
creating a conflict with the class so as to render class counsel inadequate. Id. at
These circumstances are not present here. It is true that this litigation has a
long and complex history, involving many prolix filings. But the Court finds both
parties responsible for that history. Both parties have, for instance, filed multiple
oversized briefs in this case. See R. 143 at 5. And with respect to the related, prior
litigation, the multiple suits were in part putative class counsel’s doing, but in part
due to the array of corporate entities defendants have established (including Cirque
du Soleil Burlesco, the entity discussed above), which resulted in the current
defendants not being sued in the first federal action. See R. 143 at 6; R. 140 at 5
(explaining that class counsel filed related state court action because federal judge
denied plaintiff the ability to add other Cirque corporate entities who were more
appropriate defendants). As this Court found in its summary judgment opinion,
“there is no evidence that either of the [prior, related] actions were frivolously filed
to toll time.” R. 63 at 11.
The Court also disagrees with defendants’ arguments that putative class
counsel are inadequate because they: (1) continued pursuing this case despite the
alleged defense discussed above pertaining to Cirque du Soleil Burlesco’s operation
of the Vaudeville show; and (2) included ads in addition to the July 7, 2009
Vaudeville ad (all of which were identified in discovery years earlier) in their
proposed class definition. To the contrary, putative class counsel’s adequacy is
demonstrated by their prior success in this case, including defeating two prior
dispositive motions filed by defendants. See R. 63; R. 116.
In sum, the Court finds that both Practice Management and putative class
counsel meet the adequacy requirement for class certification.
Rule 23(b)(3) Requirements
Plaintiffs seek certification under Rule 23(b)(3). This means that in addition
to the Rule 23(a) requirements, plaintiffs also must show that “ questions of law
or fact common to class members predominate over any questions affecting only
individual members, and  that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P.
23(b)(3). The Court addresses each of these factors in turn.
“There is no mathematical or mechanical test for evaluating predominance.”
Messner, 669 F.3d at 814. “Rule 23(b)(3)’s predominance requirement is satisfied
when common questions represent a significant aspect of [a] case and . . . can be
resolved for all members of [a] class in a single adjudication.” Id. at 815. “If, to make
a prima facie showing on a given question, the members of a proposed class will
need to present evidence that varies from member to member, then it is an
individual question. If the same evidence will suffice for each member to make a
prima facie showing, then it becomes a common question.” Id. “Individual questions
need not be absent. The text of Rule 23(b)(3) itself contemplates that such
individual questions will be present. The rule requires only that those questions not
predominate over the common questions affecting the class as a whole.” Id.
“Analysis of predominance under Rule 23(b)(3) ‘begins, of course, with the
elements of the underlying cause of action.’” Id. (quoting Erica P. John Fund, Inc. v.
Halliburton Co., 536 U.S. 804, 809 (2011)). As set forth above, most of the questions
relevant to Practice Management’s TCPA claim in this case are common to the
class, including whether defendants qualify as senders, whether the faxes were
solicited, whether they were advertisements, and whether they contained proper
opt-out notices. The question of appropriate remedies also is common to the class.
See, e.g., Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 253 (N.D. Ill.
2014) (in TCPA case, “defendants’ contention about calculation of individual
damages is a non-issue in terms of predominance. Plaintiffs are asking only for
statutory damages, which eliminates individual variations.”).
Defendants argue that “individualized inquiries are necessary to determine
whether—and which—members of Practice Management’s proposed class were
‘successfully sent’ a fax.” R. 125 at 2. This argument can be broken down into two
parts. First, there are the questions of whether faxes were successfully sent (for
purposes of TCPA liability), and if so, how many total (for purposes of calculating
statutory damages). Class members can make a prima facie showing as to both of
these questions based on common evidence: the ProFax invoices showing both that
faxes were successfully sent and the total number of faxes successfully sent as part
of each broadcast.
To the extent defendants challenge the reliability of the ProFax invoices to
make such a showing (see R. 125 at 14), that position is foreclosed by the Seventh
Circuit’s decision in Turza. There, like here, a fax broadcasting company sent the
faxes, and data from that company showed the total number of faxes “delivered
successfully” (in that case, 8,630 of 11,945 faxes attempted). 728 F.3d at 684-85. The
Seventh Circuit explained that “no reasonable juror could conclude that these data
are inaccurate.” Id. The district court appropriately calculated damages by
subtracting the total number of faxes received by class members who opted out
(200) from the total number delivered successfully (8,630), and multiplying the
resulting 8,430 number by the statutory penalty. Id. There was “no need for
recipient-by-recipient adjudication, and the district court did not err in concluding
‘that the questions of law or fact common to class members predominate over any
questions affecting only individual members.’” Id. at 685 (citing Fed. R. Civ. P.
The second part of Practice Management’s argument goes to class member
identification—i.e., identifying to whom the faxes were sent. It is with respect to
this issue that the absence of the fax transmission logs showing who successfully
received the faxes presents a problem. As described in the petition for certiorari in
Sandusky, courts of appeals are split as to whether class identification issues like
this one pertain to class ascertainability, predominance, or superiority. Sandusky,
petition for cert. at 22-29 (U.S. Dec. 4, 2017) (No. 17-803). But the Seventh Circuit’s
position on this issue is clear. It squarely held in Mullins that class identification
issues relate to “superiority” under Rule 23(b)(3). 795 F.3d at 664; see also
Birchmeier, 302 F.R.D. at 253-54 (“arguments about whether someone belongs in
the classes do not speak to whether common questions predominate among class
members; those who are in the classes will be those who can document that they
meet the class definitions. Rather, these arguments go to whether an individual
may join the classes,” which “is more appropriately addressed under the
manageability” component of the superiority requirement). The Court therefore
addresses this question as part of its superiority analysis below.
The Court concludes that common questions predominate in this case.
“Rule 23(b)(3)’s superiority requirement . . . is comparative: the court must
assess efficiency [of a class action] with an eye toward other available methods.”
Mullins, 795 F.3d at 664. Factors used to evaluate superiority include: “(A) the class
members’ interests in individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning the controversy
already begun by or against class members; (C) the desireability or undesireability
of concentrating the litigation of the claims in the particular forum; and (D) the
likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3).
Here, factors (A), (B), and (C) plainly weigh in favor of certification. Putative
class members have little economic incentive to sue individually based on the
amount of potential recovery involved, there are no known existing individual
lawsuits, and judicial efficiency is served by managing claims in one proceeding.
See, e.g., Mussat v. Global Healthcare Res., LLC, 2013 WL 1087551, at *7 (N.D. Ill.
Mar. 13, 2013) (TCPA class superior given “fairly small potential for individual
recovery” and lack of any “indication that other class members have commenced
litigation against the defendants”).
The central theme of defendants’ opposition to class certification in this case
is the absence of fax transmission logs to facilitate class identification. Defendants
argue that this absence will lead to likely manageability difficulties under part (D)
of Fed. R. Civ. P. 23(b)(3) (and also, as explained above, that the absence of logs
defeats predominance). To be sure, there are TCPA cases supporting defendants’
position that the absence of fax transmission logs defeats class certification,
including the Sixth Circuit’s decision in Sandusky on which defendants heavily rely.
See, e.g., Sandusky, 863 F.3d at 472-73 (class certification inappropriate based on
lack of superiority, ascertainability, or predominance in the absence of fax
transmission logs; claims by affidavit would not suffice); Physicians Healthsource,
254 F. Supp. 3d at 1040-42 (no superiority where plaintiff did not have fax
transmission logs for 29 of the 32 faxes at issue; notice by publication would not
suffice); Brey Corp. v. LQ Mgmt. LLC, 2014 WL 943445, at *1 (D. Md. Jan. 30, 2014)
(no ascertainability absent fax transmission logs; claims by affidavit would not
suffice); St. Louis Heart Ctr., Inc. v. Vein Ctrs. for Excellence, Inc., 2017 WL
2861878, at *4-5 (E.D. Mo. July 5, 2017) (no predominance absent fax transmission
logs; claims by affidavit would not suffice). This question is a matter of debate
among courts across the country. As well-summarized in the petition for certiorari
in Sandusky, courts of appeals are split on the issues of whether class identification
issues should be dealt with in terms of ascertainability, predominance, or
superiority, and more specifically whether class membership can be determined by
affidavit. See Sandusky, petition for cert. at 22-29 (U.S. Dec. 4, 2017) (No. 17-803).
But this Court is bound by Seventh Circuit law. And the Seventh Circuit in
Mullins expressly rejected the heightened ascertainability requirement adopted by
other courts of appeals that “[m]ove[s] beyond examining the adequacy of the class
definition itself to examine the potential difficulty of identifying particular members
of the class and evaluating the validity of claims they might eventually submit.” 795
F.3d at 657; see also id. at 661-63. A heightened ascertainability requirement, the
Seventh Circuit explained, has the “effect of barring class actions where class
treatment is often most needed,” including in cases where “consumers are unlikely
to have documentary proof.” Id. at 658.
The Mullins court made clear that class member identification issues instead
must be assessed in the context of “the likely difficulties of managing a class action”
prong of the superiority requirement (Fed. R. Civ. P. 23(b)(3)(D)), which involves a
relative assessment of the “costs and benefits of the class device.” 795 F.3d at 65758, 663.7 And the Mullins court explained that manageability is almost never a bar
to class certification. Id. at 664 (“refusing to certify on manageability grounds alone
should be the last resort.”). The court warned against “[r]elying on concerns about
what are essentially claim administration issues to deny certification.” Id. at 66768. It explained that “a class action has to be unwieldy indeed before it can be
pronounced an inferior alternative . . . to no litigation at all.” Id. at 658.
Specifically addressing manageability concerns regarding proof of claims
through affidavit, the Mullins court instructed that courts “should not decline
certification merely because the plaintiff’s proposed method for identifying class
members relies on affidavits.” Id. at 672. It explained that there is only “one type of
Contrary to what defendants claim, the Seventh Circuit’s decision in Turza
does not contradict Mullins and hold that class member identification is a
predominance issue. In Turza, the defendant argued that predominance was not
satisfied because it was unclear “how many faxes” each class member received,
requiring individual inquiries. 728 F.3d at 684. The Seventh Circuit rejected that
argument, holding that fax logs answered this question. Id. at 685. The Turza court
did not address the issue of class member identification squarely addressed in
case in American law where the testimony of one witness is legally insufficient to
prove a fact”—treason—and “[t]here is no good reason to extend that rule to
consumer class actions.” Id. at 669. And it discussed tools courts could use to
combat the “risk of mistaken or fraudulent claims” and to “test th[e] affidavits as
needed.” Id. at 667, 669.
Specifically addressing manageability concerns regarding notice to class
members, the Mullins court explained that Rule 23(c)(b)(2) “does not insist on
actual notice to all class members in all cases. It recognizes that it might be
impossible to identify some class members for purposes of actual notice.” Id. at 665.
When notice by mail is not possible, “courts may use alternative means such as
notice through third parties, paid advertising, and/or posting in places frequented
by class members, all without offending due process.” Id.
Applying Mullins in the TCPA context in a very similar situation—where
discovery had revealed ProFax invoices showing how many faxes were successfully
sent, but no fax transmission logs showing who got them—Judge Tharp recently
granted a motion for class certification. G.M. Sign, Inc. v. Stealth Security Sys., Inc.,
2017 WL 3581160 (N.D. Ill. Aug. 18, 2017). Judge Tharp explained:
At this juncture, the problem does not appear to be insoluble. To begin,
there is a list of over 1,700 individuals who in response to [defendant’s]
fax advertisement requested not to be contacted. Even if no one beyond
those individuals is ever identified, classes as small as forty people are
sufficient to warrant class adjudication. [Defendant] contends that
there is no “definitive means of determining whether any of the
numbers on the opt-out list received the subject fax without conducting
an individualized inquiry,” . . . but that again conflates the issues of
the adequacy of the class definition and the means of proving a
claim. . . . And again, evidence of receipt may be supplemented by
other evidence, such as retained copies of faxes received, affidavits of
receipt, evidence relating to fax machine ownership, or other facts that
are probative of whether or not an individual received a fax described
in the class definition.
Id. at *2.
The same reasoning applies here. Like in Stealth Security, there is a starting
point for identifying potential class members. In Stealth Security, that starting
point was the list of 1,700 individuals who had requested opt-outs from ProFax back
in 2006. Here, it is not only the 935-member ProFax opt-out list, but also the lists of
names, addresses, and fax numbers of 17,568 individuals targeted with four of the
fax broadcasts at issue back in 2009.8
To be sure, just as in Stealth Security, ProFax invoices reveal that a portion
of the faxes were not successfully sent to the lists targeted, and there is no way of
verifying from the available data which exact faxes these were. Compare R. 68-10 at
18 with Stealth Security, 2017 WL 3581160, at *1 (ProFax invoices in that case
showed that 13,518 of the initial batch of 21,291 were successful, and 37,215 of the
second batch of 50,267 were successful). But as the Stealth Security court found,
this lack of evidence goes to the issue of “the means of proving a claim.” Id. at *2. It
does not by itself make class certification unmanageable. Id.
To the contrary, as in other junk fax cases, notice beyond the individuals and
entities on the opt-out list and four target lists can be performed by publication. See,
e.g., Birchmeier, 302 F.R.D. at 255; CE Design v. Beaty Const., Inc., 2009 WL
Notably, three of the four fax broadcasts for which target lists are available
correspond with the two shows in Illinois. In light of the Court’s holding below with
respect to personal jurisdiction, these shows are the ones most relevant here.
192481, at *10 (N.D. Ill. Jan. 26, 2009). And all of the types of evidence described in
Stealth Security, including the affidavits the Seventh Circuit found appropriate in
Mullins, can be submitted to establish class membership. See also, e.g., Salam v.
Lifewatch, Inc., 2016 WL 8905321, at *2 (N.D. Ill. Sept. 6, 2016) (in TCPA case,
“noncustomer class members would also be able to self-identify through . . .
affidavits where necessary”); Birchmeier, 302 F.R.D. at 245-50 (in TCPA case,
permitting self-identification of claimants through affidavit).
Importantly, this process of identifying class members will “affect neither the
defendant[s’] liability nor the total amount of” calculable, statutory “damages [they]
owe[ ] to the class” if found liable. See Briseno v. ConAgra Foods, Inc., 844 F.3d
1121, 1132 (9th Cir. 2017); Mullins, 795 F.3d at 670 (in cases “where the total
amount of damages can be determined in the aggregate,” “the identity of particular
class members does not implicate the defendant’s due process interest” because
“[t]he addition or subtraction of individual class members affects neither the
defendant’s liability nor the total amount of damages it owes to the class”). And if
found liable, defendants will have an “opportunity to challenge each class member’s
claim to recovery during the damages phase.” Id. at 671. Any unclaimed portion of
the damages then can be distributed via cy pres “to a group that will use the money
for the benefit of class members.” Turza, 728 F.3d at 689; see also Hughes v. Kore of
Indiana Enters., Inc., 731 F.3d 672, 677 (7th Cir. 2013) (“In a class action the reason
for a remedy modeled on cy pres is to prevent the defendant from walking away
from the litigation scot-free because of the infeasibility of distributing the proceeds,”
especially with statutory damages, which have an inherent “deterrent objective”).
The Court therefore declines to find at this stage that proceeding by class action is
As numerous courts have observed, a contrary holding denying class
certification based on the absence of records would create perverse incentives. If the
absence of defendants’ records could defeat class certification, defendants would be
motivated to destroy their own records to avoid liability. See, e.g., Mullins, 795 F.3d
at 668 (declining to “effectively immunize[ ] defendants from liability because they
chose not to retain records of the relevant transactions”) (collecting cases); Appleton
Elec. Co. v. Advance-United Expressways, 494 F.2d 126, 135, 139 (7th Cir. 1974)
(“[c]lass actions cannot be defeated by destroying records,” and defendants “cannot
avoid a class suit merely because their own actions have made the class more
difficult to identify”); Beaty Constr., 2009 WL 192481, at *1, *3 (applying Appleton
to support certifying a TCPA class where the fax target list had been lost or
destroyed because a defendant cannot “escape liability simply by destroying the
lists of its victims”); Sadowski v. Med 1 Online, LLC, 2008 WL 2224892, at *3 (N.D.
Ill. May 27, 2008) (certifying TCPA class in the absence of fax transmission logs and
holding that “it would be unfair to hold otherwise given that the missing list of
recipients was last in Defendant’s possession”); Salam, 2016 WL 8905321, at *2
(“denying class certification because Defendant is unable to provide list of potential
class members would encourage defendants not to keep records, shielding
themselves from liability”).
This is also why it would be inappropriate to certify the class only with
respect to advertisements for which defendants produced fax target lists on the
basis of manageability, as defendants request in the alternative. Judge Kennelly in
Birchmeier, a TCPA unsolicited call case, rejected a similar argument “that the
contours of the class should be defined by defendants’ own recordkeeping.” 302
F.R.D. at 250. He explained:
This would result in an artificial class definition that would leave out
individuals who actually received the calls in question—an
unquestionably objective criterion—and who possess a record that is at
least circumstantial evidence of class membership, a picture they can
complete with their own sworn statements. 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. The Court does not agree that
the classes should be limited in the way defendants propose.
Id. Like Judge Kennelly in Birchmeier, this Court finds that defendants cannot rely
on class member identification problems resulting from their own failure to keep
records to define the contours of the class.
Defendants further complain that it would be unfair for them to face
exposure for the total number of faxes that the invoices show as successfully sent
when few people are likely to come forward with affidavits or other identifying
information regarding faxes sent back in 2009. But this claimed unfairness is a
legislative problem rather than a judicial one. “[T]he [TCPA], with its draconian
penalties for multiple faxes, is what it is.” Creative Montessori, 662 F.3d at 915.
Congress decided “that, to prompt compliance, the requirement needed bite in the
form of at least $500 in statutory damages for each violation. Congress wanted to
put an end to unsolicited fax advertising.” Bais Yaakov, 852 F.3d at 1085 (Pillard,
In sum, at this juncture, the Court finds the superiority element met. If “class
counsel cannot, down the road, propose a feasible solution for managing the
litigation or for identifying and providing notice to class members, Defendants can
move to decertify the class.” Toney v. Quality Res., Inc., 2018 WL 844424, at *21
(N.D. Ill. Feb. 12, 2018); see also Mullins, 795 F.3d at 664 (district courts should
normally “wait and see how serious the problem may turn out to be after settlement
or judgment, when much more may be known . . . And if a problem is truly
insoluble, the court may decertify the class at a later stage of the litigation.”).
In defendants’ third motion for leave to cite supplemental authority (R. 150),
they argue that the Supreme Court’s recent decision in Bristol-Myers, 137 S. Ct.
1773, “prevents this Court from asserting personal jurisdiction over the Defendants
with respect to the claims of putative class members located outside of Illinois,” and
is therefore “relevant to this Court’s consideration” of class certification. R. 150 at 5.
Although the applicability of Bristol-Myers to class actions is far from a settled
issue, see, e.g., DeBernardis v. NBTY, Inc., 2018 WL 461228, at *1 (N.D. Ill. Jan. 18,
2018) (describing split among district courts), for the reasons set forth below, the
Court agrees with defendants.
Applicability of Bristol-Myers to Federal Court Class Actions
In Bristol-Myers, a group of mostly non-Californian plaintiffs injured outside
of California brought a mass tort products liability action against Bristol-Myers
Squibb—a pharmaceutical manufacturer not subject to general jurisdiction in
California—in California state court. 137 S. Ct. at 1778. The California Supreme
Court held that the lower court had specific personal jurisdiction over Bristol-Myers
with respect to the nonresidents’ claims because those claims could be aggregated
with the California residents’ claims. Id. at 1779. The Supreme Court reversed,
holding that for purposes of specific (as opposed to general) personal jurisdiction,
“[t]he mere fact that other plaintiffs were [harmed in] California—and allegedly
suffered the same injury as nonresidents—does not allow the State to assert specific
jurisdiction over the nonresidents’ claims.” Id. at 1781.
The Supreme Court explained that the “primary focus of our personal
jurisdiction inquiry is the defendant’s relationship to the forum state.” Id. at 1779.
“A court with general jurisdiction may hear any claim against that defendant, even
if all the incidents underlying the claim occurred in a different state.” Id. at 1780.
But “[s]pecific jurisdiction is very different.” Id. For purposes of “specific
jurisdiction, the suit must aris[e] out of or relat[e] to the defendant’s contacts with
the forum.” Id. The Court found that defendants’ rights under the Fourteenth
Amendment due process clause, “acting as an instrument of interstate federalism,”
would be violated through an exercise of personal jurisdiction over defendants with
respect to nonresidents’ claims based on injuries outside the forum. Id. at 1780-81.
“This remains true,” the Court explained, “even when third parties . . . can bring
claims similar to those brought by the nonresidents.” Id. at 1781. As Justice
Sotomayor noted in her dissent, the majority decision in Bristol-Myers left open “the
question whether its opinion here would also apply to a class action in which a
plaintiff injured in the forum State seeks to represent a nationwide class of
plaintiffs, not all of whom were injured there.” Id. at 1789 n.4.
In response to defendants’ supplemental authority motion, Practice
Management first argues that the reasoning in Bristol-Myers does not extend to
class actions. Although, as noted above, courts are in disagreement about this issue,
three courts in this district have recently held that Bristol-Myers applies with equal
force in the class action context. See DeBernardis, 2018 WL 461228, at *2 (“The
Court believes that it is more likely than not based on the Supreme Court’s
comments about federalism that the courts will apply Bristol-Myers Squibb to
outlaw nationwide class actions . . . where there is no general jurisdiction over the
Defendants.”); Greene v. Mizuho Bank, Ltd., 2017 WL 7410565, at *4 (N.D. Ill. Dec.
11, 2017) (“Nothing in Bristol–Myers suggests that it does not apply to named
plaintiffs in a putative class action; rather, the Court announced a general
principle—that due process requires a ‘connection between the forum and the
specific claims at issue.’”) (quoting Bristol-Myers, 137 S. Ct. at 1781)); McDonnell v.
Nature’s Way Prod., LLC, 2017 WL 4864910, at *4 (N.D. Ill. Oct. 26, 2017) (“the
analysis used in Bristol-Myers Squibb Co. is instructive in considering whether the
Court has personal jurisdiction over the claims” of non-Illinois-resident class
This Court agrees with these courts. Indeed, it not clear how Practice
Management can distinguish the Supreme Court’s basic holding in Bristol-Myers
simply because this is a class action. The Supreme Court has emphasized that “Rule
23’s [class action] requirements must be interpreted in keeping with Article III
constraints, and with the Rules Enabling Act, which instructs that the [federal
court] rules of procedure ‘shall not abridge, enlarge, or modify any substantive
right.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 592 (1997) (quoting 28 U.S.C.
§ 2072(b)). The Supreme Court held in Bristol-Myers that the Fourteenth
Amendment’s due process clause precludes nonresident plaintiffs injured outside
the forum from aggregating their claims with an in-forum resident. Bristol-Myers,
137 S. Ct. at 1781. Under the Rules Enabling Act, a defendant’s due process interest
should be the same in the class context.
Practice Management further argues that applying Bristol-Myers in the class
action context is inconsistent with Phillips Petroleum Co. v. Shutts, 472 U.S. 797
(1985). This Court disagrees.
In Shutts, the Supreme Court rejected an argument that an exercise of
personal jurisdiction “over the claims of nonresident class members . . . violated the
due process rights of these class members because they lacked minimum contacts
with the state.” Bristol Myers, 137 S. Ct. at 1782 (emphasis added). The Supreme
Court in Bristol-Myers explicitly distinguished Shutts, explaining that Shutts dealt
with the due process rights of nonresident class members—not the due process
rights of defendants. Id. at 1782-83. “Since Shutts concerned the due process rights
of [nonresident] plaintiffs,” the Court explained, “it has no bearing on the question
presented.” Id. at 1783. The Court went on to reject respondents’ argument, much
like Practice Management’s here, that “Shutts supports their position because . . . it
would be ‘absurd to believe that [this Court] would have reached the exact opposite
result if [the defendant] had only invoked its own due-process rights, rather than
those of the non-resident plaintiffs.’” Id. at 1783. The Court explained that the
defendant in Shutts simply “did not assert that Kansas improperly exercised
personal jurisdiction over it, and the Court did not address that issue.” Id.
Here, by contrast, defendants are asserting an improper exercise of personal
jurisdiction over them with respect to nonresident class members’ claims. Shutts
does not speak to this argument. See Greene, 2017 WL 7410565, at *4 (“Shutts does
not speak to the propriety of asserting personal jurisdiction over a defendant”).
Finally, Practice Management notes that Bristol-Myers left “open the
question whether the Fifth Amendment[’s due process clause] imposes the same
restrictions on the exercise of personal jurisdiction by a federal court.” 137 S. Ct. at
1784. As defendants point out, however, that open question is not relevant here.
“Because the TCPA does not authorize nationwide service of process, the court . . .
look[s] to Illinois law for the limitation on the exercise of personal jurisdiction.”
Bakov v. Consol. Travel Holdings Grp., Inc., 2016 WL 4146471, at *1 (N.D. Ill. Aug.
4, 2016); see also McDonnell, 2017 WL 4864910, at *4 n.7 (“Because the Court is
exercising diversity jurisdiction and looking to Illinois law, however, Bristol-Myers
Squibb Co. applies here” despite the open question about Fifth Amendment
In sum, this Court agrees with the Greene, McDonnell, and DeBernardis
courts that Bristol-Myers extends to federal court class actions, at least for causes of
action where courts look to state law for the limits on personal jurisdiction.
Practice Management maintains that even if Bristol-Myers applies in the
class action context as a general matter, defendants have forfeited any personal
jurisdiction defense by not raising it in their answer (R. 11) and by litigating this
case for many years without raising it. The Court disagrees.
Defendants raise their personal jurisdiction defense in a motion that timely
followed the Supreme Court’s decision in Bristol-Myers making that defense
available to them. The Second Circuit has rejected a similar argument that a
defendant waived a personal jurisdiction defense timely raised following an
intervening Supreme Court decision. See Holzsager v. Valley Hosp., 646 F.2d 792,
795-96 (2d Cir. 1981). The Holzager court explained that “a party cannot be deemed
to have waived objections or defenses which were not known to be available at the
time they could first have been made, especially when it does raise the objections as
“[W]here a federal statute authorizes nationwide service of process,” by
contrast, there is an open question as to whether the Fifth Amendment due process
clause requires “only minimum contacts with the United States as a whole.” E.g.,
United States ex rel. Hedley v. ABHE & Svoboda, Inc., 2014 WL 12740150, at *5
(S.D. Ill. Sept. 16, 2014).
soon as their cognizability is made apparent.” Id; accord Hawknet, Ltd. v. Overseas
Shipping Agencies, 590 F.3d 87, 92 (2d Cir. 2009) (personal jurisdiction defense not
waived where prior to the time it was raised, it would have been contrary to
controlling precedent). The First Circuit has likewise found that a party can be
excused “for failing to raise a defense” where “the defense, if timely asserted, would
have been futile under binding precedent.” Bennett v. City of Holyoke, 362 F.3d 1, 7
(1st Cir. 2004); accord Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983)
(strict waiver rule in Rule 12(h)(1) “extends only to defenses ‘then available’’’)
(quoting Fed. R. Civ. P. 12(g)); see also In re Micron Tech., Inc., 875 F.3d 1091, 1094
(Fed. Cir. 2017) (“the venue defense now raised . . . based on TC Heartland [LLC v.
Kraft Foods Group Brands, LLC, 137 S. Ct. 1514 (2017)]’s interpretation of the
venue statute was not ‘available,’ thus making the waiver rule of Rule 12(g)(2) and
Like in these cases, the Court finds that raising a personal jurisdiction
defense as to unnamed, nonresident class members would have been “futile”
(Bennett, 362 F.3d at 7) prior to Bristol-Myers. The Court therefore finds that the
defense was not “then available” to defendants, Fed. R. Civ. P. 12(g), and declines to
find it forfeited. Cf. Alvarez v. NBTY, Inc., 2017 WL 6059159, at *6 (S.D. Cal. Dec.
6, 2017) (“The Court can see how Bristol-Myers may have created a new defense . . .
that this Court lacked personal jurisdiction over the claims brought by
the unnamed members to Plaintiff Alvarez’s proposed multi-state class”; holding
that Bristol-Myers did not create a new defense as to the claims of named plaintiffs
because there was a clearer, prior basis for such a defense in the law).
And even if defendants had waived this defense, the Court finds that it would
be appropriate to excuse the forfeiture. Judge Feinerman excused defendant’s
forfeiture of a Bristol-Myers argument in Greene even though the personal
jurisdiction defense as to the named plaintiff’s claim in that case had a clearer basis
in prior precedent. Judge Feinerman reasoned that “‘[t]he court . . . retains the
independent power to identify and apply the proper construction of governing law,’
even where the parties ‘fail[ ] to advert’ to the applicable rule in their own briefing.”
2017 WL 7410565, at *6 (quoting Kamen v. Kemper Fin Servs., Inc., 500 U.S. 90, 99
(1991)). “Given the Supreme Court’s clear holding in Bristol-Myers concerning the
proper framework for analyzing personal jurisdiction in cases like this one,” Judge
Feinerman determined that “exercising the court’s discretion to excuse the
forfeiture [wa]s warranted.” Id.
The Court finds that there is even more reason to excuse any forfeiture here
than in Greene. Unlike in Greene, defendants are not seeking to assert a personal
jurisdiction defense as to the named plaintiff Practice Management’s claim.
Defendants make clear that they “do not object to the court’s exercise of specific
jurisdiction over Plaintiff with respect to its individual claim.” R. 160 at 3; see also
R. 150 at 4 (“Because Plaintiff is an Illinois corporation that received an allegedly
offending fax in Illinois . . . , Plaintiff’s individual claim arises out of Defendants’
alleged contact with Illinois—specifically, their alleged involvement in directing
faxes to this state”). Instead, defendants seek to assert a personal jurisdiction
defense only with respect to unnamed, nonresident class members’ claims. Those
unnamed, nonresident class members were not even parties to the litigation until
now. See Smith v. Bayer Corp., 564 U.S. 299, 314 (2011) (“argument that a
nonnamed class member is a party to the class-action litigation before the class is
certified” is “novel and surely erroneous”). This fact further weighs in favor of
excusing any forfeiture.
Application of Bristol-Myers to this Case
Finally, the Court analyzes the implications of Bristol-Myers in this case.
“Personal jurisdiction comes in two forms, general and specific.” E.g., McDonnell,
2017 WL 4864910, at *4. The Supreme Court in Bristol-Myers explained that a
court could validly exercise personal jurisdiction over nonresidents’ claims in
situations where it possesses “general jurisdiction” over the defendant. 137 S. Ct. at
1783. But there is no basis for an assertion of general personal jurisdiction here.
Practice Management has acknowledged in summary judgment responses filed
previously in this litigation that defendant Cirque du Soleil, Inc. is incorporated in
Quebec, Canada and has its registered office in Montreal. R. 55 ¶ 5. It has also
acknowledged that defendant Cirque du Soleil (US), Inc. is incorporated in
Delaware and has its registered office in Las Vegas, Nevada. Id. ¶ 6. Therefore, this
Court lacks general jurisdiction over either defendant. See Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (“the paradigm forum for the
exercise of general jurisdiction . . . for a corporation” is “one in which the
corporation is fairly regarded as home,” such as its “place of incorporation” or
“principal place of business”); BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017)
(“The ‘paradigm’ forums in which a corporate defendant is ‘at home,’ . . . are the
corporation’s place of incorporation and its principal place of business”). Practice
Management makes no argument to the contrary.
That means the only basis for this Court’s exercise of personal jurisdiction
over defendants is specific jurisdiction. Again, for an exercise of specific personal
jurisdiction, “the suit must aris[e] out of or relat[e] to the defendant’s contacts with
the forum.” Bristol-Myers, 137 S. Ct. at 1780. And under Bristol-Myers, “[t]he mere
fact” that Practice Management received a fax in Illinois “does not allow” for an
exercise of “specific jurisdiction over the nonresidents’ claims” with respect to faxes
received outside of Illinois (and whose claims thus do not relate to defendants’
contacts with Illinois). Id. at 1781. Because these nonresidents’ claims do not relate
to defendants’ contacts with Illinois, exercising specific personal jurisdiction over
defendants with respect to them would violate defendants’ due process rights. Thus,
as in DeBernardis and McDonnell, the Court finds it appropriate to dismiss the
claims of the non-Illinois-resident class members. DeBernardis, 2018 WL 461228, at
*2 (granting motion to dismiss the claims of “out-of-state plaintiff classes”);
McDonnell, 2017 WL 4864910, at *4-5 (dismissing claims of non-Illinois-resident
class members); see also Greene, 2017 WL 7410565, at *6 (dismissing claims of a
nonresident named plaintiff).
This ruling does not change this Court’s holdings with respect to the class
certification elements. In particular, numerosity is easily established “by a
preponderance of the evidence” (Messner, 669 F.3d at 811) for a class of Illinois
residents alone. The target list spreadsheets show “PRIMARY_STATE=IL” for
many thousands of addresses to which ProFax sent the Rockford and Vaudeville
advertisements. R. 68-10 at 7. And, at least at this juncture, the Court fails to see
why the claims process could not proceed as outlined above, with the three target
list spreadsheets showing primarily Illinois addresses as starting points and
requiring claims affidavits to verify Illinois residency and receipt of the faxes in
Because the impact of Bristol-Myers arose by way of defendants’ motion for
leave to file supplemental authority, the parties did not have an opportunity to brief
the issue of how the class should be defined if the Court were to rule, as it has, that
it lacks personal jurisdiction over defendants with respect to class members who are
not Illinois residents. Defendants suggest in their motion that the “proposed class
definition” could be “limited to persons or entities located in Illinois who received
faxes in Illinois.” R. 150 at 4. But they do not give focused treatment to this issue.
And Practice Management, because its response argued that Bristol-Myers is
inapplicable, never addressed the issue.
Because the Court “must define the class” in an order granting class
certification (Fed. R. Civ. P. 23(c)(1)(B)), the Court defines the class, for current
All persons who are residents of Illinois and all entities located in
Illinois who were successfully sent a facsimile in Illinois containing the
“Cirque du Soleil” trade name from January 29, 2009, through July 8,
2009, offering tickets for sale to the following performances:
“Saltimbanco” at Rockford MetroCentre, Rockford, Illinois, opening
February 25, 2009; and “A New Twist on Vaudeville” at Chicago
Theatre, Chicago, Illinois, opening November 19, 2009.
The Court finds that it is unlikely, based on the current record, that any nonIllinois theatrical shows should be included within the class definition. The only
available fax target list for a non-Illinois show—the target list corresponding with
the “Kooza” show at Pepsi Center Grounds in Denver, Colorado, opening August 20,
2009—lists “CO” as the “PRIMARY_STATE” for all of the addresses included. R. 6810 at 7. This means that the Colorado show almost certainly should not be included
in the class definition, and further indicates that the other non-Illinois shows
should not be included. The Court therefore believes its definition is proper.
If the parties believe that any modifications should be made to the current
class definition—which, again, is not an issue on which the parties have previously
focused—they can raise that issue at the next status conference, and the Court may
allow a limited period of time for the parties to file short position papers regarding
the appropriate class definition.
For the foregoing reasons, the Court grants Practice Management’s motion
for class certification in part (R. 68), appoints Practice Management as class
representative, and appoints the law firms of Anderson + Wanca and the Margulis
Law Group as class counsel. The Court also grants defendants’ motions for leave to
file supplemental authority (R. 140; R. 148; R. 150).
The Court finds that the Supreme Court’s ruling in Bristol-Myers Squibb Co.
v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017), prevents
it from exercising personal jurisdiction over defendants with respect to the claims of
non-Illinois-resident class members. The Court therefore defines the class, for
current purposes, as:
All persons who are residents of Illinois and all entities located in
Illinois who were successfully sent a facsimile in Illinois containing the
“Cirque du Soleil” trade name from January 29, 2009, through July 8,
2009, offering tickets for sale to the following performances:
“Saltimbanco” at Rockford MetroCentre, Rockford, Illinois, opening
February 25, 2009; and “A New Twist on Vaudeville” at Chicago
Theatre, Chicago, Illinois, opening November 19, 2009.
The Court sets a status conference for March 20, 2018, at which the parties
should be prepared to report on next steps in this litigation. If the parties believe
that modifications should be made to the current class definition, they can raise
that issue at the status conference, and the Court may allow the parties to file short
position papers on that limited issue.
Honorable Thomas M. Durkin
United States District Judge
Dated: March 12, 2018
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