Magic, Inc. v. 127 High Street, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER Signed by the Honorable James B. Zagel on 12/2/2014. Mailed notice(cdh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAGIC, INC., an Illinois corporation,
individually and as the representative of a
class of similarly situated persons,
Plaintiff,
v.
No. 14 C 4344
Judge James B. Zagel
127 HIGH STREET, INC., SILVERMAN
ENTERPRISES, LLC, CLEAR CHOICE
SALES, LLC, CONCORD III, LLC, MATT
DAVIDSON, CHRISTOPHER MOORE,
KRISTA CROCKER, JAMES EARL SCOTT
d/b/a INFOCONEX ONLINE SERVICES,
INC., JCFDATA, INC., JAMES C.
FLEMING, AARON HAZELL d/b/a 5 STAR
FAX, INC. and JOHN DOES 1-10,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Magic, Inc. (“Plaintiff”) filed a complaint against 127 High Street, Inc.,
Silverman Enterprises, LLC, Clear Choice Sales, LLC, Concord III, LLC, Matt Davidson,
Christopher Moore, Krista Crocker, James Earl Scott d/b/a Infoconex Online Services, Inc.,
JCFDATA, Inc., James C. Fleming, Aaron Hazell d/b/a 5 Star Fax, Inc., and John Does 1-10
(“Defendants”), alleging violations under the Telephone Consumer Protection Act of 1991, as
amended by the Junk Fax Protection Act (“JFPA” or the “Act”). Defendants Clear Choice Sales,
LLC (“Clear Choice”) and Concord III, LLC (“Concord”), joined by Defendants James Earl
Scott, James C. Fleming, JCFDATA, and Aaron Hazell, filed a motion to dismiss Plaintiff’s
Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the following reasons, I
deny Defendants’ motion to dismiss.
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I. BACKGROUND
On or about June 16, 2010, Defendants transmitted by telephone facsimile machine an
unsolicited fax to Plaintiff. The fax states, in material part:
“GET PAID FOR FAXES! – Do you ever receive fax advertisements? Would you
like to get paid for receiving fax advertisements? If so, then you should join the
Get Paid for Faxes Program.
The Get Paid for Faxes Program will compensate you by paying a $ 0.50
bounty for each unique fax advertisement that you submit. To qualify for the
$0.50, each submitted fax must 1) be an advertisement for a product or service, a
newsletter, news release, or press release; 2) have been originally transmitted to
you within the past 30 days; and 3) not have been submitted by you previously.
Payment will not be made for any stock or investment faxes.
…
To submit your faxes for payment, simply write your name and phone number on
the received fax, and fax it to (866) 458-6503.”
Plaintiff had not invited or given permission to Defendants to send the fax. Plaintiff alleges that
Defendants faxed the same and other unsolicited facsimiles without the required opt-out
language to Plaintiff and more than twenty-five other recipients without first receiving the
recipients’ express permission or invitation. Plaintiff alleges that there is no reasonable means for
Plaintiff or any other class member to avoid receiving the unauthorized faxes.
II. LEGAL STANDARD
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) does not test the merits of a claim;
rather it tests the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990). In deciding a § 12(b)(6) motion, the court accepts all well-pleaded facts as true,
and draws all reasonable inferences in favor of the plaintiff. Id. at 1521. To survive a § 12(b)(6)
motion, “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, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009). “A complaint should not be dismissed for failure to state [a] claim unless it
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appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle the
plaintiff to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 1959
(2007).
III. DISCUSSION
Section 227(b) states that “[i]t shall be unlawful for any person within the United States
to use any telephone facsimile machine…to send an unsolicited advertisement to a telephone
facsimile machine…” 47 U.S.C. § 227(b). An unsolicited advertisement is “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.” 47 U.S.C.
§ 227(a)(5).
There is no dispute that Plaintiff had no existing business relationship with Defendants
and that Defendants did not obtain his permission to send him the fax; the only issue before this
Court is whether the fax constitutes an “unsolicited advertisement” under the TCPA. Defendants
contend that the fax at issue is not an “unsolicited advertisement” because it does not advertise
property, goods, or services that are commercially available for purchase from Defendants, but
rather is a solicitation to purchase items from the recipient. The TCPA does not prohibit faxed
solicitations to buy services from the recipient, Defendants argue, and so, Plaintiff’s claim must
be dismissed. Plaintiff, however, contends that the fax is an advertisement that promotes the
“commercial availability of a fax-buying service,” in which Defendants provide the service of
paying recipients for sending it fax advertisements.
Courts confronted with this issue have looked to the precise information included in the
fax, such as descriptions of the availability or quality of products. See Green v. Time Ins. Co.,
629 F.Supp.2d 834, 837 (N.D.Ill. 2009). The fax at issue makes an overt pitch to recipients to
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join its “Get Paid for Faxes Program” and receive a compensation of “a $ 0.50 bounty for each
unique fax advertisement” submitted to Defendants. This fax neither offers employment, Lutz
Appellate Services v. Rodney Curry, 859 F.Supp. 180 (E.D.Penn 1994), nor attempts to recruit
participants to participate in clinical research, Ameriguard v. University of Kansas Medical
Center, 2006 WL 1766812 (W.D. Mo. 2006). Rather, this fax invites the recipients to do
business with Defendants by soliciting recipients to submit advertisements in return for a fee
through what amounts to a commercial “fax-buying” service. Brodsky v. HumanaDental
Insurance Company, 2014 WL 2780089, at *7 (N.D.Ill. June 12, 2014) (fax not merely
promoting research studies or trials, but openly inviting recipient to do business and promoting
benefits of sender’s products, could be an “advertisement” under the TCPA); Green v. Anthony
Clark, Int’l Ins. Brokers, Ltd. 2009 WL 2515594, at *1 (N.D.Ill. Aug. 17, 2009) (Kennelly, J.)
(court found faxes urging insurance brokers to “sell or merge their business(es)” with another
company arguably promoted the commercial availability of a service, the brokering of a sale on
an insurance agency); see also Green v. Anthony Clark, Int’l Ins. Brokers, Ltd., 2015580 WL
431673, at *5 (N.D.Ill. Feb. 1, 2010).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is denied.
ENTER:
James B. Zagel
United States District Judge
DATE: December 2, 2014
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