Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc. et al

Filing 113

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/29/17.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ARWA CHIROPRACTIC, P.C.,
an Illinois professional corporation,
individually and as the representative
of a class of similarly situated persons,
Plaintiff,
v.
MED-CARE DIABETIC & MEDICAL
SUPPLIES, INC. and STEVEN
SILVERMAN,
Defendants.

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14 C 5602
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
From July to October 2013, Plaintiff Arwa Chiropractic, P.C. (Plaintiff)
received a series of six faxes from Med-Care Diabetic & Medical Supplies, Inc. (MedCare). Based upon its receipt of these faxes, Plaintiff has filed suit against MedCare and its CEO, Steven Silverman (together, Defendants), alleging violations of
the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.

In addition,

Plaintiff has alleged state law claims for conversion and violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et
seq.
Plaintiff has filed a motion for class certification pursuant to Federal Rule of
Civil Procedure (Rule) 23(b)(3), seeking certification solely with respect to its TCPA
claims. For the reasons provided herein, Plaintiff's motion is granted.

1

I. Background
Med-Care is a for-profit company that sells medication and medical
equipment to consumers. Pl.’s Mot. Class Certification (Pl.’s Mot.) at 2, ECF No. 93.
Before Med-Care can complete a sale of medication or medical equipment to a
consumer, a licensed medical provider must prescribe the medication or equipment.
Id. at 3. Thus, to process a sale to a consumer, Med-Care typically instructs one of
its employees to call the consumer and request that the consumer provide his or her
medical provider’s information, so that Med-Care can then contact the medical
provider to solicit a prescription. Id. at 3–4. According to Med-Care, it explains to
all patients requesting a prescription that a prescription request form will be sent
“on [the patient’s] behalf to [his or her] doctor.” Defs.’ Resp. at 6, ECF No. 97.
If the consumer is unable to provide full contact information for his or her
medical provider, Med-Care’s employees can fill in missing details about the
provider using the National Provider Index database. Pl.’s Mot. at 4. Med-Care
does not contact medical providers directly to confirm the existence of a doctorpatient relationship or to obtain the provider’s contact information. Id.
From July through October 2013, Med-Care sent six “broadcasts” of faxes to
thousands of medical providers. Id. at 7–8. These broadcasts were sent on July 2,
July 10, October 2, October 9, October 17, and October 25, 2013. Id. at 8. In total,
over 46,000 faxes were sent during these six broadcasts, and Arwa received a fax
from Med-Care in each one. Id. at 7–8.

2

Each of the faxes sent during these six broadcasts concerned an
“Ipratropium-Albuterol Nebulizer Kit.” Id. The faxes stated: “Your patient has
asked us to contact you regarding authorization for a Nebulizer and its medications
to help with their breathing problems. . . . In order to supply those products to your
patient, under the Medicare program, we must obtain a signed order by the
patient’s physician.” Id.; see also Pl.’s Ex. I, Six Faxes at 2–8. All of the faxes sent
in these broadcasts were identical except for the date and the patient- and doctorspecific identifying information listed on each fax. Id. at 8. None of the faxes
contained an opt-out notice. Id. at 7.
Plaintiff contends that the faxes it received during these six broadcasts were
sent in violation of the TCPA. In addition, Plaintiff has moved for class certification
of its TCPA claim pursuant to Rule 23(b)(3), seeking to certify a class defined as
follows:
All persons who were sent one or more facsimiles from Med-Care
Diabetic & Medical Supplies of Boca Raton, FL on any of the following
6 dates: July 2, 2013, July 10, 2013, October 2, 2013, October 9, 2013,
October 17, 2013, or October 25, 2013, stating, “Your patient has asked
us to contact you regarding authorization for a Nebulizer and its
medications to help with their breathing problems. . . . In order to
supply those products to your patient, under the Medicare program, we
must obtain a signed order by the patient’s physician.
Pl.’s Mot. at 9.
With the proposed class definition in mind, the Court now turns to the merits
of Plaintiff’s motion for class certification.

3

II. Legal Standard
Class certification is governed by Rule 23.

Under Rule 23(a), class

certification is permitted only when: “(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a); see also Messner v.
Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012).
In addition, when, as here, class certification is sought pursuant to Rule
23(b)(3), “proponents of the class must also show: (1) that the questions of law or
fact common to the members of the proposed class predominate over questions
affecting only individual class members; and (2) that a class action is superior to
other available methods of resolving the controversy.” Messner, 669 F.3d at 811
(citing Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010)). 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).
It is important to note that “Rule 23 does not set forth a mere pleading
standard.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014) (internal
quotation marks omitted) (quoting Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338,
350 (2011)). Rather, “[p]laintiffs bear the burden of showing that a proposed class
satisfies the Rule 23 requirements.” Messner, 669 F.3d at 811. As such, when

4

reviewing a motion for class certification, a court “may not simply assume the truth
of the matters as asserted by the plaintiff[s],” but instead must receive evidence and
resolve factual disputes as necessary to decide whether certification is appropriate.
Id. (citing Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 676 (7th Cir. 2001)).
“[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis,
that the prerequisites of Rule 23(a) have been satisfied.” Wal–Mart, 564 U.S. at
350–51 (internal quotation marks omitted).
Although “the court should not turn the class certification proceedings into a
dress rehearsal for the trial on the merits,” Messner, 559 F.3d at 811, considerations
bearing on class certification often overlap with issues underlying the merits of the
plaintiffs' claims. See Wal–Mart, 564 U.S. at 351; Retired Chi. Police Ass’n v. City of
Chi., 7 F.3d 584, 599 (7th Cir. 1993). A court must accordingly “make whatever
factual and legal inquiries are necessary to ensure that requirements for class
certification are satisfied before deciding whether a class should be certified, even if
those considerations overlap the merits of the case.” Am. Honda Motor Co. v. Allen,
600 F.3d 813, 815 (7th Cir. 2010) (citing Szabo, 249 F.3d at 676).
III. Analysis
Plaintiff has moved for class certification of its TCPA claims pursuant to Rule
23(b)(3), arguing that its proposed class meets the requirements of numerosity,
commonality, typicality, and adequacy under Rule 23(a), as well as the
requirements of predominance and superiority under Rule 23(b)(3). In response,
Defendants contest all the requirements except numerosity. Mindful that

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“certification is proper only if the trial court is satisfied . . . that the prerequisites of
Rule 23(a) have been satisfied,” Wal–Mart, 564 U.S. at 351–52 (internal quotation
marks omitted), the Court now turns to discuss all four requirements for class
certification under Rule 23(a), as well as the requirements of predominance and
superiority under Rule 23(b)(3). As explained below, the Court finds that Plaintiff
satisfies all of these requirements, and the Court therefore grants Plaintiff’s motion
for class certification.
A. Rule 23(a)(1): Numerosity
Rule 23(a) requires that members of a certified class be “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is
satisfied where “it’s reasonable to believe [the class is] large enough to make joinder
impracticable and thus justify a class action suit.” Arnold Chapman & Paldo Sign
& Display Co. v. Wagner Equities, Inc., 747 F.3d 489, 492 (7th Cir. 2014). Generally
speaking, classes of forty or more members have been found to be sufficiently
numerous to warrant class certification. See, e.g., Pruitt v. City of Chi., 472 F.3d
925, 926–27 (7th Cir. 2007); Oplchenski v. Parfums Givenchy, Inc., 254 F.R.D. 489,
495 (N.D. Ill. 2008).
Plaintiff asserts that it has established numerosity under Rule 23(a) because
invoices from Med-Care’s fax vendor with fax transmission quantities show that
Defendants sent over 46,000 faxes to thousands of recipients. Pl.’s Mot. at 10; Pl.’s
Ex. M, Westfax Invoices at 2–7.

The Court notes that the invoices specify the

quantity of fax transmissions, but they do not appear to indicate the number of

6

recipients per se. Id., Ex. M. It may be possible, for example, that Defendants sent
thousands of fax transmissions to a small number of recipients. Be that as it may,
Defendants, as the senders of the faxes, are in a position to know the number of
recipients, and they do not dispute Plaintiff’s assertion. The Court therefore finds
that Plaintiff has satisfied the numerosity requirement.
B. Rule 23(a)(2): Commonality
For class certification to be proper, the class members’ claims must present
common questions of law or fact. Fed. R. Civ. P. 23(a)(2). A question is common to
the class if it generates a common answer, such that determination of the question
will “resolve an issue that is central to the validity of each one of the claims in one
stroke.” Wal–Mart, 564 U.S. at 350. The common questions “need not address
every aspect of the plaintiffs’ claims,” but they “must ‘drive the resolution of the
litigation.’”

Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 553 (7th Cir. 2016)

(quoting Wal–Mart, 564 U.S. at 350). “[F]or purposes of Rule 23(a)(2) ‘[e]ven a
single [common] question’ will do.” Wal–Mart, 564 U.S. at 359. In TCPA cases,
commonality “normal[ly]” exists because the question of whether a particular fax is
an advertisement is generally common to the putative class. Holtzman, 728 F.3d at
683.
Here, Plaintiff asserts that a number of common questions drive the
resolution of its claims, including: (1) whether Defendants’ “prescription request
form” is an “advertisement” within the meaning of 47 U.S.C. § 227(a)(5); (2) whether
Defendants obtained “express invitation or permission” from recipient doctors

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before sending the faxes to them; (3) whether the forms included compliant opt-out
language; (4) whether Defendants have sender liability for the faxes; (5) whether
Plaintiffs and other class members are entitled to statutory damages; (6) whether
Defendants’ violations were knowing or willful and, if so, whether the Court should
treble the statutory damages; and (7) whether the Court should enjoin Defendants
from faxing advertisements in the future without prior express consent or without
an opt-in notice. Pl.’s Mot. at 11.
While Plaintiff has proposed a number common questions, Pl.’s Mot. at 11–
12, it is sufficient for our purposes to note that whether the faxes at issue would
qualify as “advertisements” under the TCPA is a central question common to all
recipients. See Holtzman, 728 F.3d at 683; see also Wal–Mart, 564 U.S. at 359
(“Even a single [common] question will do.”). Moreover, Defendants intend to move
for summary judgment on this basis, Defs.’ Resp. at 2, further underscoring how
this common question will “drive the resolution of litigation.” Phillips v. Sheriff of
Cook Cty., 828 F.3d 541, 553 (7th Cir. 2016) (quoting Wal–Mart, 564 U.S. at 350).
To the extent that Defendants discuss commonality at all, they do so only in
the context of their objections to Rule 23’s typicality and predominance
requirements. 1

But, for the reasons explained infra, these arguments are

1

Defendants assert that “plaintiff’s lack of typicality undermines . . . any possible
commonality amongst the putative class.” Defs.’ Resp. at 3. However, Defendants then go on to
argue that Rule 23(a)(3)’s typicality requirement is not satisfied, without explaining why
typicality would, in this case, also affect the commonality analysis. Id. at 6–11. Defendants then
refer to commonality once more, stating, “[s]imply put, plaintiff is unable to satisfy Rule 23’s
commonality and predominance requirements.” Id. at 11. However, Defendants then proceed to
make arguments with regard to Rule 23(b)(3)’s predominance and superiority requirements,
without again referring to commonality. Id. at 11–12.
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unavailing. Accordingly, the Court finds that Plaintiff has satisfied Rule 23(a)’s
commonality requirement.
C. Rule 23(a)(3): Typicality
Typicality under Rule 23(a) requires that the named plaintiffs’ claims “arise[]
from the same event or practice or course of conduct that gives rise to the claims of
other class members” and “are based on the same legal theory.” Keele v. Wexler, 149
F.3d 589, 595 (7th Cir. 1998). The typicality requirement is thus satisfied when
“the named representatives’ claims have the same essential characteristics as the
claims of the class at large.” Retired Chi. Police Ass’n, 7 F.3d at 597. “Typicality
under Rule 23(a)(3) should be determined with reference to the [defendant’s]
actions, not with respect to particularized defenses it might have against certain
class members.” Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996); see
also CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724–25 (7th
Cir. 2011) (quoting id.).
Plaintiff states that it meets the typicality requirement because Defendants
faxed each class member one or more “prescription request forms” regarding an
Ipratropium-Albuterol Nebulizer Kit. Pl.’s Mot. at 12. According to Plaintiff, each
of the class members was subjected to the same conduct, and each member’s claim
is based on the same legal theory as Plaintiff’s. Id.
In response, Defendants argue that Plaintiff’s claims are not typical of the
class it proposes to represent because, unlike other putative class members who
received prescription request forms that contained names of their patients, Plaintiff

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received a form with the name of a person who was not its patient. Defs.’ Resp. at
7, 12. Defendants opine that Rule 23(a) typicality is destroyed because Defendants
have a consent defense against other members of the putative class that Defendants
cannot assert against Arwa Chiropractic, P.C., the named plaintiff. Id. at 8, 14.
Defendants rely on the Seventh Circuit case CE Design, 637 F.3d at 724–25. 2 See
Defs.’ Resp. at 7. However, as Defendants concede in passing, id., the CE Design
court addressed particularized defense arguments not within the context of Rule
23(a)’s typicality requirement (which focuses on Defendants’ conduct), but rather its
adequacy requirement, which focuses on Plaintiff and the putative class. 637 F.3d
at 724–25; see, e.g., Gehrich v. Chase Bank USA, N.A., 316 F.R.D. 215, 225 (N.D. Ill.
2016) (quoting id.). Therefore, the Court will address Defendants’ consent-defense
argument within the context of Rule 23(a)’s adequacy requirement.
Because the Court does not otherwise find any reason to doubt that Plaintiff’s
claims have the same essential characteristics as the claims of members of the
class, the Court concludes that the typicality requirement is satisfied.
D. Rule 23(a)(4): Adequacy
The adequacy requirement under Rule 23(a)(4) comprises two parts: “the
adequacy of the named plaintiff's counsel, and the adequacy of representation
provided in protecting the different, separate, and distinct interest of the class

2

In CE Design, Plaintiff, but not other putative class members, had published its number
in the Blue Book of Building and Construction. 637 F.3d at 725–26. Plaintiff had agreed that
“by supplying The Blue Book with your fax and e-mail address, you agree to have The Blue
Book and users of The Blue Book services communicate with you via fax or e-mail.” Id.
(emphasis in original). The court remanded to the district court to determine if this “arguable”
consent defense, inter alia, defeated Rule 23(a)(4)’s adequacy requirement. Id. at 728.
10

members.” Retired Chi. Police Ass'n, 7 F.3d at 598. “[A] class is not . . . adequately
represented if class members have antagonistic or conflicting claims.” Id. (quoting
Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)).
Plaintiff asserts that it satisfies both components of the adequacy
requirement.

With respect to the qualifications of counsel, Plaintiff notes that

counsel Bock, Hatch, Lewis & Oppenheim, LLC has “proven expertise in TCPA
litigation.” Pl.’s Mot. at 13; see Pl.’s Ex. N, BHLO Resume at 3–17. Counsel has
“been litigating TCPA claims since 2003 and ha[s] prosecuted dozens of such cases
to successful resolution, including many class-wide settlements.” Pl.’s Mot. at 13.
With respect to the second prong of the adequacy requirement, Plaintiff explains
that it and the other class members all seek statutory damages under the TCPA,
they have no antagonism toward one another, there is no potential for conflicting
interests, and Plaintiff understands the obligations and nature of its claims. Id.
In response, Defendants do not dispute that the first prong of adequacy is
met, and the Court notes counsel’s extensive experience with over twenty TCPA
cases. See Pl.’s Mot., Ex. N at 3–17. The Court therefore finds no indication that
Plaintiff’s counsel will be inadequate to protect the interests of the class.
In response to the second prong of adequacy, Defendants replicate their
argument against typicality.

Namely, Defendants argue that they have an

affirmative defense against an unspecified percentage of putative class members,
which Defendants concede they do not have against the sole named Plaintiff. Defs.’
Resp. at 12–14, 6–11. Defendants do not explain why exactly this difference would

11

make Plaintiff inadequate. However, the Court construes Defendants’ argument to
suggest that the sole named Plaintiff would be inadequate because it would not
have an incentive to adequately litigate against a defense to which most other class
members would be subjected. Id.
In support of their argument, Defendants rely on the Seventh Circuit’s
statement in the TCPA case CE Design that the “presence of even an arguable
defense peculiar to the named plaintiff or a small subset of the plaintiff class” may
make the named plaintiff an inadequate representative of the class. 637 F.3d at
726 (quoting J.H. Cohn & Co. v. Am. Appraisal Assoc., Inc., 628 F.2d 994, 999 (7th
Cir. 1980)). Defendants argue that Plaintiff is peculiar in that Defendants lack a
consent defense against Plaintiff that they arguably hold against most or all of the
rest of the proposed class. 3 Defs.’ Resp. at 8.
In its reply, rather than addressing whether Defendants’ consent defense is
unique to Plaintiff, Plaintiff argues that Defendants’ asserted consent defense is
entirely without merit. 4 Pl.’s Rep. at 5–7. Given parties’ apparent agreement that

3

In CE Design, 637 F.3d at 726, defendants held a defense uniquely against the named
plaintiff, while here Defendants concededly lack a defense against the named Plaintiff that they
assert they hold against much of the rest of the class. This difference is of little import, however,
because, if the defense were meritorious, a named plaintiff might have significantly differing
litigation incentives as compared to fellow members, regardless of whether it is the object or
non-object of the defense.

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The Court assumes, without deciding, that Defendants’ asserted consent defense against
Plaintiff would, if viable, be “peculiar” to Plaintiff or a subset of putative plaintiffs. Id.
However, neither party has presented evidence as to what percentage of fax recipients were
properly matched to their actual patients. Given Med-Care’s information-sourcing practices,
including, inter alia, asking end consumers for information about their doctors and looking up
information in the NPI database, Pl.’s Mot. at 3–4; Defs.’ Resp. 6–7, it may be the case that a
significant percentage of fax recipients were incorrectly matched to consumers who were not
12

Defendants’ consent defense against Plaintiff would, if valid, be peculiar to the
named Plaintiff, the critical inquiry under CE Design is whether the defense is
“arguable.” 637 F.2d at 726. If the consent defense has some merit, that would
suggest a potentially serious adequacy problem with the named plaintiff. Id. If the
defense appears to have no or little merit based on the record at the class
certification stage, it cannot be the basis for inadequacy because the defense would
only minimally, if at all, distract Plaintiff from representing the interests of the
broader class. See id. at 728 (Defendants cannot “derail legitimate class actions by
conjuring up . . . insubstantial defenses unique to the class representative”). The
Court therefore finds it is necessary to make legal and factual inquiries to ensure
the adequacy requirement of class certification is satisfied, even though this
consideration overlaps somewhat with the merits of the case. See Wal–Mart, 564
U.S. at 351; Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 599 (7th Cir. 1993);
Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010) (citing Szabo, 249
F.3d at 676).
Defendants’ consent defense is grounded in the TCPA, 47 U.S.C. §
227(b)(1)(C), which provides that it is unlawful for any person to use a fax machine
to send to another fax machine an “unsolicited advertisement.” The TCPA defines
“unsolicited

advertisement”

as

“any

material

advertising

the

commercial

availability or quality of any property, goods, or services which is transmitted to any

their patients. For its part, Med-Care asserts, without citation to any supporting evidence, that
the mistaken doctor-patient matching “applies only to Arwa Chiropractic and not the proposed
class.” Defs.’ Resp. at 9.
13

person without that person’s prior express invitation or permission, in writing or
otherwise.” Id., § 227(a)(5) (emphasis added).
Defendants do not argue that any doctors to whom they sent “prescription
request forms” by fax provided express invitation or permission directly to MedCare. Rather, consent allegedly came in three decidedly indirect forms. 5

First,

“consent to send the prescription request form to the medical provider . . . came
from the patient who requested the Med-Care product.” Defs.’ Resp. at 8. Second,
doctor-recipients expressly consented to receiving the fax because “[t]he faxes were
sent to the physician at a number the physician would have supplied to their
patient, and the patient then gave to Med-Care” and “the doctor would have
permitted her patient to use that fax number.” Id. Third, some doctors allegedly
consented to receiving further forms by previously sending back signed forms, the
original receipt of which they had consented to by the previous two means of
consent. Id. at 14.
All of Defendants’ express consent arguments lack viability based on the
current record. As to the first argument, Plaintiff correctly notes, Pl.’s Rep. at 5,
that the plain language of § 227(a)(5) unambiguously states that express invitation
or permission (“consent”) may be given only by the recipient of the advertising. 6

5

Defendants also present a fourth consent-defense argument, namely that “if a doctor had
published the fax number [anywhere], there will be an unsettled dispute” requiring
“individualized review” for each doctor-recipient as to whether the doctor gave express consent.
Defs.’ Resp. at 10. This argument is most appropriately analyzed within the context of Rule
23(b)(3)’s predominance requirement, and the Court addresses the argument there.
6

Plaintiff also claims, and Defendants concede, that all the relevant faxes failed to contain
an “opt-out” notice. Pl.’s Rep. at 5; Defs.’ Resp. at 5. However, Plaintiff’s arguments regarding
14

Therefore, any argument that relies wholly on a non-recipient granting consent
cannot satisfy the statute. 7
As to Defendants’ second argument, even if the legal argument were correct,
Defendants make factual claims that are unsupported by the evidence before the
Court. Cf. CE Design, 637 F.3d 721 at 728 (requiring that the party “assault[ing]”
adequacy must “demonstrate that there exists admissible evidence”).

With no

support, Defendants claim that an unspecified proportion of recipient doctors
“would have” supplied fax numbers to their patients and again, without support or
specification of frequency, that the patient then gave the numbers to Med-Care,

opt-out notices are irrelevant to class certification, and the briefing of both parties appears to
demonstrate some confusion regarding the role of opt-out notices.
Despite parties’ apparent belief to the contrary, under 47 U.S.C. § 227, a lack of an optout notice is not an element of a TCPA violation. Rather, § 227(b)(C) provides that where
Defendants have an “established business relationship” with recipients, § 227(b)(C)(i), the TCPA
is not violated where, inter alia, the advertisement contains a sufficient opt-out notice, §
227(b)(C)(iii). Thus, where a recipient has no “established business relationship” with a
defendant and yet receives an unsolicited advertisement, the TCPA is violated regardless of
whether the advertisement contains an opt-out notice.
An “established business relationship” is defined in 47 CFR § 64.1200(f)(5) as a “prior or
existing relationship formed by a voluntary two-way communication between a person or entity
and a business or residential subscriber . . . on the basis of an inquiry, application, purchase or
transaction by the business or residential subscriber regarding products or services offered by
such person or entity . . . .” Here, Defendants do not argue at this stage that they have an
established business relationship with any recipients of their faxes. The opt-out notice issue is
therefore irrelevant to class certification.
7

Defendants’ reliance on the Eleventh Circuit case Osorio v. State Farm Bank, 746 F.3d
1242 (11th Cir. 2014), is misplaced. In that case, the court held that a jury should be allowed to
determine if cohabitants who, crucially, shared a single phone line, could expressly consent to
calls intended for the other on the same phone line. Id. at 1253–54. Osorio therefore does not
endorse a broad theory of third-party express consent, but rather addresses the situation in which
more than one person exercises dominion over one phone number.

15

rather than Med-Care sourcing the fax numbers from the NPI database. Defs.’
Resp. at 8.

Defendants then assert, without support, that the recipient doctors

“would have” consented to the sending of the fax because the doctor “would have”
permitted her patient to use that fax number.

Id.

It is unclear whether

Defendants, by using the phrasing “would have,” mean to indicate that these
parties actually did what Defendants claim, or rather that they “would have” if
hypothetically requested to do so. In any event, Defendants fail to support either
interpretation with evidence.
Moreover, even accepting each of Defendants’ unsupported factual assertions
as true, Defendants do not explain how this course of conduct constitutes express
consent on the part of the doctor-recipients to receive unsolicited advertisements by
fax from Med-Care. Even if doctors “permitted [their] patient[s] to use that fax
number,” Defs.’ Resp. at 8, that plainly is express permission for only the patient to
send a fax to the doctor rather than permission for Med-Care, or any other person,
to do so. 8 At best, Defendants confuse implied consent for the express consent
required under the TCPA.
As to Defendants’ third theory of consent, Defendants’ claims are, again,
entirely unsupported by evidence. Defendants assert that “the request forms that
are faxed to medical providers include . . . prescription requests . . . related to
refills,” citing to a page of an exhibit that contains no such support for that claim.
Defs.’ Resp. at 14; Pl.’s Ex. B, Goetz Dep at 156. Without citation to any evidence,
8

Express permission to use a fax number is also not in itself express permission to send an
advertisement to that fax number. The TCPA requires the latter in order for the advertisement to
not be unsolicited. See 47 U.S.C. § 227(a)(5).
16

Defendants then claim that when a fax “is related to a refill, the medical provider
has already returned the completed prescription request form received by facsimile,
evidencing further consent to receive the prescription requests by fax.”

Id.

Defendants also fail to specify whether such alleged refill-request forms were part of
the six “broadcasts” at issue in Plaintiff’s proposed class, or if those forms contained
the same language required to be included in the proposed class. Id. Defendants’
argument thus again evokes the Seventh Circuit’s declination to let defendants
“derail legitimate class actions by conjuring up . . . insubstantial defenses unique to
the class representative.” CE Design, 637 F.3d at 728; see Savanna Group, Inc. v.
Trynex, Inc., 2013 WL 66181, at *9 (N.D. Ill. Jan. 4, 2013) (finding commonality and
adequacy requirements met where there was no evidence to support consent
defense); Hawkins v. Securitas Sec. Serv. USA, Inc., 280 F.R.D. 388, 394 (N.D. Ill.
2011) (rejecting objection to adequacy based upon meritless defense); Manno v.
Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 687–88 (S.D. Fla. 2013)
(certifying class where asserted defense shared by putative class members—but not
named plaintiff—was not viable); Meyer v. Portfolio Recovery Assoc,, LLC, 707 F.3d
1036, 1042 (9th Cir. 2012) (certifying class where there was no evidence that named
plaintiff or putative class members had consented to receiving communication);
Silbaugh v. Viking Magazine Serv., 278 F.R.D. 389, 392–93 (N.D. Ohio 2012)
(certifying class where there was no evidence that putative class members had
expressly consented to receiving communication); cf. Johnson v. Yahoo!, Inc., 2016
WL 25711, at *4–5 (N.D. Ill. Jan. 4, 2016) (finding adequacy requirement not met

17

where there was sufficient indication that plaintiff expressly consented to receiving
communication).
In sum, Defendants’ arguments that they had the express invitation or
permission of recipient doctors that § 227(a)(5) requires lack viability based on the
record before the Court. Accordingly, the Court concludes that Plaintiff would likely
not need to devote significant resources to litigate the consent defense on behalf of
the class, and Plaintiff would not have a misalignment in incentives to protect the
interests of the class as a whole.
Therefore, given the nature of Plaintiff’s claims, there is no indication that
the named representative will be inadequate to protect the interests of the class, or
that there is risk of antagonistic or conflicting claims arising within the class. 9 The
Court concludes that Plaintiff has satisfied the adequacy requirement under Rule
23(a).
E. Rule 23(b)(3): Predominance
Rule 23(b)(3) builds upon Rule 23(a)'s requirement of commonality by further
requiring that common questions “predominate over any questions affecting only
individual members.”

Fed. R. Civ. P. 23(b)(3).

Common questions are said to

predominate over other issues in the case when “a common nucleus of operative
facts and issues underlies the claims brought by the proposed class.” Messner, 669
F.3d at 815 (internal quotation marks omitted). In other words, class certification

9

To the extent that further developments in the factual record would require the Court to
reevaluate this determination, it has the discretion to do so. See Fed. R. Civ. P. 23(c)(1)(C);
Fonder v. Sheriff of Kankakee County, 823 F.3d 1144, 1147 (7th Cir. 2016).
18

under Rule 23(b)(3) is proper 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.
Plaintiff argues that predominance is satisfied because the class members’
claims arise under the same federal statute (the TCPA), the Defendants sent all
class members the same form of advertisement in six fax blasts during a four-month
period in 2013, and none of the putative class members provided prior express
invitation or permission. Pl.’s Mot. at 13–14.
In response, Defendants argue that, for every putative class member, an
individual inquiry is required as to whether the fax recipient gave prior express
consent, “with no means of resolving that disputed issue on a class wide basis.”
Defs.’ Resp. at 11–12.
In support of this argument, Defendants assert that the Seventh Circuit’s
holding in CE Design effectively prohibits TCPA class actions where a Defendant
places consent in issue. 10 According to Defendants, the consent issue “must be
treated and resolved on a case-by-case basis as instructed by the Seventh Circuit,
10

Defendants also rely on misguided interpretations of Eleventh and Fifth Circuit cases in
support of their individualized-inquiry argument. Defendants assert that Osorio, 746 F.3d at
1252–54, requires a federal court to look to the common law of each class member’s state to
determine the meaning of consent for that particular plaintiff. Defs.’ Resp. at 10. It does not.
That court merely looked to state law, among other sources, including Black’s Law Dictionary,
to help inform its statutory interpretation of “consent” in the TCPA. Osorio, 746 F.3d at 1252–
54. In addition, Defendants’ comparison to Gene and Gene LLC v. Biopay LLC, 541 F.3d 318,
329 (5th Cir. 2008), is also misplaced. The court there held that the plaintiff had “failed to
advance any viable theory employing generalized proof concerning the lack of consent with
respect to the class” and, therefore, individualized inquiries were unavoidable. Id. By contrast,
here, Plaintiff has demonstrated that such individualized inquiries into consent would not be
necessary given, among other reasons, the utter lack of evidence to support the defense.
19

rendering class treatment impossible.” Defs.’ Resp. at 9. Defendants rely on the
Seventh Circuit’s statement in CE Design that “it [is] appropriate to treat the issue
of consent in any complaint regarding unsolicited facsimile advertisements on a
case-by-case basis.” Id.; CE Design, 637 F.3d at 726–27. Defendants misread CE
Design by equating “case-by-case basis” with “plaintiff-by-plaintiff basis.” 11

The

Seventh Circuit’s admonition, id., was to make a fact-specific inquiry in each TCPA
fax case as to whether recipients granted consent. 12 Here, the Court has evaluated
Defendants’ express consent arguments within the context of the class certification
record, and it has found the arguments lack viability.
In this case, Plaintiff has met its burden of demonstrating that common
questions predominate over individualized issues as to the rest of the class. Each of
the class members’ claims arises under the TCPA, Defendants sent all class
11

Defendants’ individualized-inquiry argument also contradicts their consent-defense
argument against typicality. For the purposes of assailing typicality, Defendants argue that they
have a consent defense against most of the putative class (but not named Plaintiff) because, by
providing their doctors’ information to Med-Care, those consumers categorically provided
consent to Med-Care to send their doctors forms by fax. But for purposes of assailing
predominance, Defendants assert that consent can only be determined on a plaintiff-by-plaintiff
basis. The arguments contradict one another, and they are both incorrect.
12

Moreover, despite Defendants’ claim to the contrary, CE Design, 637 F.3d 721, does not
stand for the proposition that “if a doctor had published the fax number” anywhere, Defs.’ Resp.
at 10, “there will be an unsettled dispute about whether that publication equals consent.” Id. Nor
does it imply that if “doctors . . . had released their fax numbers generally to the public, [the
doctors] likely would have consented to receive the prescription request forms . . . .” Id. at 14.
Instead, it was critical in CE Design that Plaintiff had published its number in the Blue Book of
Building and Construction, where Plaintiff had agreed that “by supplying The Blue Book with
your fax and e-mail address, you agree to have The Blue Book and users of The Blue Book
services communicate with you via fax or e-mail.” CE Design, 637 F.3d at 725–26 (emphasis in
original). And, according to the court, in this particular instance, providing consent to send faxes
also provided express consent to send advertising via fax because “why else would those sellers
[including Defendant] want to “communicate” with civil engineers [Plaintiffs] by fax except to
advertise their wares to them?” Id. at 725.
20

members the same form by fax, and there appear to be no viable individualized
defenses based on the record at this stage. See Zeidel v. A&M (2015) LLC, 2017 WL
1178150, at *5 (N.D. Ill. Mar. 30, 2017) (finding predominance requirement met in
TCPA case where there were no viable individualized consent defenses); Birchmeier
v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 253–53 (N.D. Ill. 2014) (same);
Mohamed v. Am. Motor Co., LLC, 320 F.R.D. 301, 313–14 (S.D. Fla. 2017) (same);
Avio v. Alfoccino, Inc., 311 F.R.D. 434, 445–46 (E.D. Mich. 2015) (same); Manno, 289
F.R.D. 674, 689–90 (S.D. Fla. 2013) (same); Kristensen v. Credit Payment Serv., 12
F.Supp.3d 1292, 1306–07 (D. Nev. 2014) (finding lack of evidence of express consent
in TCPA case means that “courts should ignore a defendant’s argument that
proving consent necessitates individualized inquiries” (citing Meyer, 707 F.3d at
1042–43)).

Moreover, once it is determined whether

Defendants violated the

TCPA, calculating individual damages will be a simple matter of tallying the
number of unsolicited advertisements class members received by fax and computing
statutory damages under 47 U.S.C. § 227(b)(3). See, e.g., Birchmeier, 302 F.R.D. at
255. Additionally, determining whether treble damages are available based on a
finding that Defendants willfully or knowingly violated the TCPA, § 227(b)(C), is
likely, in this case, to be resolved at the class level. For these reasons, the Court
finds that Plaintiffs have satisfied the Rule 23(b)(3) requirement of predominance.
F. Rule 23(b)(3): Superiority
Rule 23(b)(3) permits class certification only in cases where “a class action is
superior to other available methods for fairly and efficiently adjudicating the

21

controversy.” Fed. R. Civ. P. 23(b)(3). The Seventh Circuit has recognized that, like
commonality, Rule 23(b)(3)'s superiority requirement is closely related to the
requirement of predominance—the more that common questions predominate over
other issues in the case, the more likely it is that a class action is the superior
method of adjudication. See Messner, 669 F.3d at 814 n.5.
Plaintiff argues that resolution of the TCPA issues on a classwide basis,
rather than in thousands of individual lawsuits, would be an efficient use of both
judicial and party resources. Pl.’s Mot. at 15 (quoting Hinman v. M & M Retail Ctr.,
545 F. Supp. 2d 802, 808 (N.D. Ill. 2008)). In response, Defendants rely on their
argument, which the Court has already rejected within the context of its
predominance analysis, that there must be an individual lawsuit for each putative
class member. Defs.’ Resp. at 12.
Because common questions predominate for the reasons explained above,
class certification is the most efficient method of adjudicating the class members'
TCPCA claims. See Messner, 669 F.3d at 814 n.5; see also Zeidel, 2017 WL 1178150
at *5 (finding superiority requirement satisfied in TCPA case); Birchmeier, 302
F.R.D. at 255–56 (same). The Court therefore finds that Plaintiffs have satisfied
the superiority requirement under Rule 23(b)(3).
IV. Conclusion
For the reasons stated herein, Plaintiff’s Rule 23 motion for class certification
[92] is granted.

Plaintiff may proceed with its TCPA claims on behalf of the

following class:

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All persons who were sent one or more facsimiles from Med-Care
Diabetic & Medical Supplies of Boca Raton, FL on any of the following
6 dates: July 2, 2013, July 10, 2013, October 2, 2013, October 9, 2013,
October 17, 2013, or October 25, 2013, stating, “Your patient has asked
us to contact you regarding authorization for a Nebulizer and its
medications to help with their breathing problems. . . . In order to
supply those products to your patient, under the Medicare program, we
must obtain a signed order by the patient’s physician.

IT IS SO ORDERED.

ENTERED

9/29/17

__________________________________
John Z. Lee
United States District Judge

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