Meinders v. Emery Wilson Corporation et al
Filing
84
ORDER GRANTING Amended Motion to Certify Class filed by Robert L. Meinders (Doc. 68 ). Signed by Judge Staci M. Yandle on 6/21/2016. (mah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DR. ROBERT L. MEINDERS D.C., LTD,
Individually and as the Representative of a
Class of Similarly Situated Persons,
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Plaintiff,
vs.
EMERY WILSON CORPORATION
d/b/a STERLING MANAGEMENT
SYSTEMS,
Defendant.
Case No. 14-CV-596-SMY-SCW
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Dr. Robert L. Meinders D.C., LTD. filed a two-count Class Action Complaint,
individually and on behalf of all similarly situated persons, against Defendant Emery Wilson
Corporation d/b/a Sterling Management Systems (“Sterling”) and John Does 1-12 alleging
violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1), and
common law conversion. Pending before the Court is Plaintiff’s Amended Motion for Class
Certification (Doc. 68). Sterling filed a response in opposition (Doc. 72). Plaintiff filed a reply
(Doc. 76-1) 1. For the following reasons, Plaintiff’s Motion is GRANTED.
Background
Sterling is a corporation that provides management training and consulting services to
1
Plaintiff’s Motion for Leave to File Reply Brief Instanter is GRANTED. The standard for reviewing whether
neglect is ‘excusable’ is an equitable one, taking into consideration relevant circumstances, including (1) the danger
of prejudice to the non-moving party; (2) the length of the delay and its impact on judicial proceedings; (3) the
reason for the delay; and (4) whether the movant acted in good faith. Sherman v. Quinn, 668 F.3d 421, 425-26 (7th
Cir. 2012). Here, the prejudicial effect on Sterling and the length of the delay are minimal. Further, the Court finds
that counsel acted in good faith and the stated reason for the delay was excusable neglect.
1
entrepreneur and business clients (Doc. 69-8, p. 18). To promote its business, Sterling sends
faxes to existing and potential customers promoting its workshop seminars and training programs
(Doc. 69-8, pp. 116-138). Sterling maintains a customer contact database known as the “central
file” containing customer information created and maintained by Sterling employees (Doc. 697).
The “central file” database is a storage center for contact information of anyone who
expresses interest in a Sterling product or service (Doc. 69-6, pp. 42-45). Sterling obtains leads
and new customers by mailing postcards/brochures, signing contracts for services and during
workshops and seminars (Id.). Once a customer purchases a training program or consulting
services from Sterling, they become a “Major” client. 2
Sterling employees pull numbers from the “central file” to send faxes (Doc. 69-6, p. 73).
The “central file” contains 2,322 client fields (Docs. 69-9-69-12). Sterling employees sent faxes
to “central file” customers on most days (Doc. 69-8, pp. 46-58). Based on Sterling’s AT&T
records, during the relevant time period, Sterling sent out thousands of faxes from two Xerox fax
machines located in its office (Docs. 69-15, 69-16). Sterling contends that its employees were
trained to obtain consent prior to faxing advertisements.
During deposition, former Sterling employee Joshua Gillion testified that he always at
least attempted to call customers prior to sending a fax (Doc. 69-8, pp. 50-51).
Sterling
employee Dana Moraru testified that Sterling employees do not send faxes to every single client
(Doc. 69-6, p. 54). Rather, Sterling’s unwritten policy is to obtain verbal consent to send faxes
(Doc. 69-6, p. 167). Sterling did not regularly maintain copies of materials sent to customers,
notes regarding which faxes were sent, or documentation of the consent allegedly obtained (Doc.
2
For example, Plaintiff was designated a “Major” client and placed in Sterling’s “central file” after completing a
training workshop in 1987 (Doc. 69-7, pp. 203-04). There is no indication from the contract that Plaintiff consented
to receiving fax advertisements or correspondence from Sterling (Id.).
2
69-6, pp. 69, 162, Doc. 69-8, p. 51).
Sterling also maintains a “dead file” database complied of customers who either asked to
be removed from Sterling’s active customer list or customers that have “legal situations” with
Sterling (Doc. 69-6, p. 50). After filing suit, Plaintiff was placed in the “dead file” (Id. at pp. 4748). The “dead file’ contains 41 entries (see Docs. 69-9-69-12).
In 2013, Plaintiff received two faxes from Sterling advertising Sterling seminars in
Minneapolis, Minnesota and Chicago, Illinois (Doc. 69-13, pp. 16-21). The faxes did not contain
opt-out disclaimers (Id.).
There is no evidence that Plaintiff consented to receiving fax
advertisements (Doc. 69-6, pp. 164-168). Plaintiff contends that Sterling violated the TCPA,
which makes it illegal to send an unsolicited fax advertisement unless (1) the sender and
recipient have an established business relationship, (2) the recipient voluntarily made its fax
number available through specified means, or (3) the fax ad contained a statutorily compliant
notice. 47 U.S.C. § 227(b)(1)(C); Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 938
(7th Cir. 2016).
Plaintiff moves for class certification under Rules 23(a) and 23(b)(3) of the Federal Rules
of Civil Procedure. Plaintiff seeks to represent a class defined as follows:
All persons in Defendant’s “central file’ or “dead file” databases who were
successfully sent one or more facsimiles in the four years prior to April 3, 2014,
from Defendant The Emery Wilson Corporation, d/b/a Sterling Management
Systems advertising its goods and services.
Legal Standard
“The class action is an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.” Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481,
493 (7th Cir. 2012) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541,
2548, 180 L. Ed. 2d 374 (2011)). A district court may certify a case for class-action treatment
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only if it satisfies the four requirements of Federal Rule of Civil Procedure 23(a)—numerosity,
commonality, typicality, and adequacy of representation—and one of the conditions of Rule
23(b). See Fed.R.Civ.P. 23. In this case, Plaintiff seeks to certify a class under Rule 23(b)(3), so
it must show that issues common to the class members predominate over questions affecting only
individual members and that a class action is superior to other available adjudication methods.
Fed. R. Civ. P. 23(b)(3); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir.
2012). In addition, a class must be sufficiently definite that its members are ascertainable.
Oshana v. Coca–Cola Co., 472 F.3d 506, 513 (7th Cir.2006).
Plaintiff bears the burden of showing that the proposed class satisfies the Rule 23
requirements, but it need not make that showing to a degree of absolute certainty.” Messner, 669
F.3d at 811 (internal citation omitted). “It is sufficient if each disputed requirement has been
proven by a preponderance of evidence.” Id. (citing Teamsters Local 445 Freight Div. Pension
Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir.2008)). A class may be certified only if a
district court is “satisfied, after a rigorous analysis,” that compliance with Rule 23 has been
shown, even if the analysis entails some overlap with the merits. Wal–Mart Stores, Inc, 131
S.Ct. at 2551.
Discussion
Rule 23(a) Requirements
“All class actions, no matter what type, must meet the four explicit requirements of
Federal Rule of Civil Procedure 23(a): (1) the class is so numerous that joinder of all members is
impracticable (numerosity); (2) there are questions of law or fact common to the class
(commonality); (3) the claims or defenses of the representative parties are typical of the claims
or defenses of the class (typicality); and (4) the representative parties will fairly and adequately
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protect the interests of the class (adequacy of representation).” Chicago Teachers Union, Local
No. 1 v. Board of Educ. of City of Chicago, 797 F.3d 426, 433 (7th Cir. 2015).
Numerosity
“Although there is no ‘bright line’ test for numerosity, a class of forty is generally
sufficient.” Pruitt v. City of Chicago, 472 F.3d 925, 926 (7th Cir. 2006). A plaintiff is not
required to specify the exact number of persons in the class nor is a plaintiff required to establish
the exact identity of the class members. See Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th
Cir. 1989) (citation omitted). “A class can be certified without determination of its size, so long
as it's reasonable to believe it large enough to make joinder impracticable and thus justify a class
action suit.” Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d
489, 492 (7th Cir. 2014). “How many (if any) of the class members have a valid claim is the
issue to be determined after the class is certified.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085
(7th Cir.2014) (emphasis in original). A court may make common sense assumptions in
determining numerosity. Ringswald v. Cty. of DuPage, 196 F.R.D. 509, 511 (N.D. Ill. 2000).
Sterling’s “central file” and “dead file” databases contain over 2000 customers. Sterling
employees testified that faxes were sent to customers in the “central file”. A class consisting of
potentially thousands of recipients of Sterling’s fax transmissions is sufficiently numerous to
render joinder impracticable, thereby satisfying Rule 23(a)(1). 3
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Sterling argues that it did not have a consistent practice of sending fax advertisements to numbers in its central file
database and that there is no way to tell a fax’s content from the fax transmission records alone. However, Sterling
employee Gillion testified that he sent flyers out “most days” (Doc. 69-8, p. 58). The fax transmission records
support Gillion’s testimony. Further, it is well-established that a class can be certified without determination of its
size, so long as it’s reasonable to believe it is large enough to make joinder impracticable. Arnold Chapman &
Paldo Sign & Display Co., 747 F.3d at 492.
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Commonality
To satisfy commonality, Plaintiff's “claims must depend on a common contention” and
“[t]hat common contention…must be 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.” Wal–Mart Stores, Inc, 131 S.Ct. at 2551. “A
common nucleus of operative fact is usually enough to satisfy the commonality requirement.”
Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.1998). Such common nuclei are generally present
where “defendants have engaged in standardized conduct towards members of the proposed
class.” Id.
Sterling contends that Plaintiff is unable to satisfy the commonality requirement because
there is no valid way to show which class members received unsolicited advertisements, thus
Plaintiff cannot certify a class based on the “central file” or “dead file” databases or the AT&T
fax records.
Specifically, relying on recent decisions by the Third Circuit and other non-
controlling authority, Sterling argues that Plaintiff’s proposed class definition fails because some
putative class members may have received non-actionable transaction communication and there
is no way to determine if any of the faxes sent qualify as non-actionable. Essentially, Sterling
argues that the proposed class is not ascertainable.
Although not explicitly listed under Rule 23, a class may be certified only if its members
can be ascertained. Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015). To show
that a class is ascertainable, a plaintiff must offer a definition that is (1) precise, (2) defined by
objective criteria, and (3) not defined in terms of success on the merits. Id. at 659–60. In
Mullins, the Seventh Circuit made clear that, at this stage of the litigation, a plaintiff need not
prove there is a reliable and administratively feasible way to identify all who fall within the class
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definition. Id. at 657–58. Rejecting an argument similar to Sterling’s, the Mullin’s court
declined to apply the Third Circuit’s approach, which “goes much further than the established
meaning of ascertainability” and “misreads Rule 23”:
Some courts have raised the bar for class actions under Rule 23(b)(3). Using the
term “ascertainability,” at times without recognizing the extension, these courts
have imposed a new requirement that plaintiffs prove at the certification stage that
there is a “reliable and administratively feasible” way to identify all who fall
within the class definition. These courts have moved 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…In effect, it gives one factor in the balance
absolute priority, with the effect of barring class actions where class treatment is
often most needed: in cases involving relatively low-cost goods or services, where
consumers are unlikely to have documentary proof of purchase. These are cases
where the class device is often essential “to overcome the problem that small
recoveries do not provide the incentive for any individual to bring a solo action
prosecuting his or her rights.” Mullins, 795 F.3d at 659.
Plaintiff’s proposed class is defined precisely, defined by objective criteria and is not
defined in terms of success on the merits. Nothing more is required. The class definition
complies with Mullins and is, therefore, ascertainable. 4
Sterling next argues that there is no common nucleus of fact regarding customer
permission and Plaintiff cannot demonstrate that Sterling engaged in a “standardized course of
conduct vis-à-vis class members. However, “Rule 23(a)(2) does not demand that every member
of the class have an identical claim,” and some degree of factual variation will not defeat
commonality provided that common questions yielding common answers can be identified.
Spano v. The Boeing Co., 633 F.3d 574, 585 (7th Cir. 2011); see also Rosario v. Livaditis, 963
F.2d 1013, 1017-18 (7th Cir. 1992).
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Sterling devotes several pages comparing this matter to Vigus v. S. Ill. Riverboat/Casino Cruises, Inc., 274 F.R.D.
229 (S.D.Ill. 2011). Vigus is not controlling authority. Further, Vigus, decided prior to Mullins, applied a stringent
version of the ascertainability/typicality requirement which, as discussed above, are not required for a Rule 23(b)(2)
class action.
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Here, the proposed class members claims all arise under the same statute and involve
common legal issues. The claims of all class members depend on the resolution of some or all of
these key common questions – whether Sterling sent unsolicited fax advertisements in violation
of the TCPA; whether Sterling obtained the recipients’ express permission or invitation to send
the faxes; whether the recipients received faxes with the necessary opt-out language; 5 whether
Plaintiff and the other class members are entitled to statutory damages; and whether Sterling’s
actions were “willful” or “knowing” under the TCPA and, if so, whether Plaintiff and other class
members are entitled to trebled damages. See Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684
(7th Cir. 2013) (class certification is normal in litigation under § 227 because the main questions
such as whether a given fax is an advertisement are common to all recipients); Brill v.
Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir.2005).
Finally, Sterling argues that commonality cannot be established because consent is
individualized and cannot be inferred on a class basis. More specifically, Sterling asserts that
because no TCPA violation occurred if a fax was sent to an individual who consented to receive
5
Sterling argues that whether it provided an opt-out notice is irrelevant because the Federal Communications
Commission (“FCC”) waived Sterling’s compliance with its opt-out notice requirements under regulation 47 C.F.R
§ 64.1200(a)(4)(iv). In 2005, Congress enacted the Junk Fax Prevention Act (“JFPA”), which amended the fax
advertising provisions of the TCPA. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
29 F.C.C. Rcd 13998, 14000 (Oct. 30, 2014) (“Opt–Out Order”) (footnote omitted). One new addition was the
requirement that opt-out notices be included in unsolicited fax advertisements sent to recipients who have an
established business relationship with the sender. 47 U.S.C. § 227(b)(1)(C)(iii). Subsequently, the FCC
promulgated regulations implementing the JFPA. Thereafter, a number of entities petitioned the FCC for a
declaratory ruling that the requirement that opt-out notices be included in faxes sent with recipients' express prior
consent was invalid. See Opt–Out Order at 14001. In response to these petitions, the FCC issued the Opt–Out
Order, which “affirm[ed] that the [FCC's] rules require that an opt-out notice must be contained on all fax ads,” even
those sent to consumers who “previously agreed to receive fax ads from such senders.” Id. at 13998, 14005.
However, pursuant to the Opt-Out Order, the FCC retroactively waived application of the opt-out requirement to the
petitioners and gave similarly-situated parties six months to seek retroactive waivers as well. Sterling sought and
received a waiver on August 28, 2015. However, as Plaintiff correctly notes, Sterling’s fax advertisement can only
evade the required opt-out notice if the recipient had given prior express permission or consent. If, however, a fax
recipient did not provide consent, but instead only had an existing business relationship with Sterling, then the optout requirement is still effective. In this case, Sterling does not have the records to establish consent and can only
demonstrate existing business relationships with putative class members. Thus, Sterling’s receipt of a waiver would
not change the scope of the class or resolve the issue of consent.
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it, this Court will have to engage in an individualized inquiry as to whether each class member
consented to receive the fax. Factual variations amongst class members' claims, however, do not
necessarily defeat class certification as long as the representatives claims are based on the same
course of conduct and legal theory as the class as a whole. De LaFuente v. Stokely–Van Camp,
Inc., 713 F.2d 225, 232 (7th Cir.1983). Therefore, commonality is satisfied.
Typicality
For typicality, “there must be enough congruence between the named representative's
claim and that of the unnamed members of the class to justify allowing the named party to
litigate on behalf of the group.” Spano, 633 F.3d at 586. The typicality requirement addresses
the separate concerns that (1) the representative's claim may fail on unique grounds, dooming
meritorious claims of absent class members; or (2) the representative's claims may prevail on
unique grounds, and the representative may therefore fail to adequately present alternative
grounds under which the unnamed class members could prevail on their own claims. See CE
Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011). It is wellestablished that typicality is satisfied if the named representative's claim “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.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th
Cir.1992).
Sterling contends Plaintiff’s claim is not typical of the class because it is vulnerable to
unique defenses and objections: Plaintiff allegedly consented to contact via fax and Sterling had
a continuous business relationship with Plaintiff beginning when Plaintiff attended a workshop
and received consultation services in 1987. Based on Sterling’s alleged unchanged business
practices, Sterling argues that it is “possible” Plaintiff provided its fax number to Sterling prior
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to, during, or after the 1987 workshop. Sterling further contends that it is “possible” Sterling
called Plaintiff before sending the subject faxes. Based on these suppositions, Sterling asserts
that Plaintiff’s claim fails. This argument is without merit.
The record establishes that any evidence of possible prior express consent has been
destroyed. Other than speculation, Sterling has not produced evidence that Plaintiff indeed
consented. Further, the fact that twelve out of a class of potential thousands provided prior
express permission to receive fax advertisements does not vitiate typicality. 6 “For an assault on
the class representative to succeed, the party mounting the assault must demonstrate that there
exists admissible evidence so severely undermining the plaintiff's credibility that a fact-finder
might reasonably focus on plaintiffs credibility, to the detriment of the absent class members'
claims.” C.E. Design Ltd., 637 F.3d at 728. Here, no such evidence exists. Given that
Plaintiff’s claims and the claims of the proposed class members arise from Sterling’s alleged
violation of the TCPA, each member’s claim is based on the same legal theory as Plaintiff.
Thus, typicality is satisfied.
Adequacy
As for adequacy, a representative party must “fairly and adequately protect the interests
of the class.” Fed. R. Civ. P. 23(a)(4). “[A]dequacy of representation is composed of 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 members.” Retired Chicago
Police Ass'n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (quotation omitted). Sterling
does not challenge the adequacy of class counsel and the Court has no reason to believe they are
not qualified or that they will not fairly and adequately represent the interests of the class.
6
As further support, Sterling attaches the affidavit of twelve of its customers who attest to providing express
permission to receive fax advertisements (Doc. 72-1).
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Plaintiff’s counsel are experienced attorneys who have been appointed as lead or co-lead counsel
in numerous class actions around the country, including class actions involving the TCPA (Doc.
69-18). Therefore, the Court will only analyze whether the named Plaintiff is an adequate
representative.
The adequacy requirement is satisfied when the named representatives have “a sufficient
interest in the outcome of the case to ensure vigorous advocacy” and “[do] not have interests
antagonistic to those of the class.” Saltzman v. Pella Corp., 257 F.R.D. 471, 480 (N.D.Ill.2009)
aff'd, 606 F.3d 391 (7th Cir.2010).
Sterling argues that Plaintiff is not a suitable class
representative because his claims are subject to the unique defense of “prior express permission.”
As discussed previously, this argument is rejected. The evidence (or lack thereof) in the record
does not suffice to call Plaintiff’s typicality or adequacy into question. Further, Plaintiff’s
motive for bringing suit is not so obviously improper or antagonistic to the class that Plaintiff
could not be its representative. Accordingly, adequacy is satisfied.
Rule 23(b)(3) Requirements
In addition to the requirements of Rule 23(a), a plaintiff seeking class certification must
satisfy one of Rule 23(b)'s three subsections. Here, Plaintiff proceeds under subsection (3),
which allows for certification upon a finding that “questions of law or fact common to members
of the class predominate over any questions affecting only individual members,” and also that “a
class action is superior to other available methods for resolving the controversy.” Fed. R. Civ. P.
23(b)(3).
Predominance
“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
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adjudication.” Messner, 669 F.3d at 815 (quotation omitted). “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. (quotation omitted). Predominance “trains on the legal or factual questions that qualify each
class member's case as a genuine controversy” and “tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.”
Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 624, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
Plaintiff asserts that common issues of law and fact predominate in this action. Sterling
vigorously counters that individualized issues regarding whether clients consented to receive fax
advertisements will predominate. Sterling’s argument is frequently asserted and rejected in
TCPA cases involving fax broadcasting. 7 As succinctly summarized in Jamison v. First Credit
Services, Inc., 290 F.R.D. 92, 106 (N.D. Ill. 2013), a helpful rule that can be extracted from
TCPA cases regarding whether issues of individualized consent predominate over common
questions of law or fact is that “individualized consent predominate when a defendant sets forth
specific evidence showing that a significant percentage of the putative class consented.”
Jamison, 290 F.R.D. at 106-07.
Although Sterling has provided some evidence that class members may have consented to
receiving fax advertisements, this evidence is far from overwhelming. That evidence includes
the affidavits of twelve clients (out of a class of potential thousands) attesting to providing
7
See, eg, G.M. Sign, Inc. v. Group C Communications, Inc., 2010 WL 744262, at *6 (N.D.Ill. Feb. 25, 2010);
Targin Sign Systems, Inc. v. Preferred Chiropractic Center, Ltd., 679 F.Supp.2d 894 (N.D.Ill. Jan. 21, 2010); CE
Design v. Beaty Const., Inc., 2009 WL 192481, at *7 (N.D.Ill. Jan. 26, 2009); G.M. Sign, Inc. v. Franklin Bank,
S.S.B., 2008 WL 3889950, at *6 (N.D.Ill. Aug. 20, 2008); Green v. Service Master On Location Services Corp.,
2009 WL 1810769, at *2 (N.D.Ill. June 22, 2009); Hinman v. M and M Rental Center, Inc., 545 F.Supp.2d 802
(N.D.Ill.2008); see also numerous cases cited by Plaintiff (Doc. 69, pp. 8-9).
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Sterling prior express consent for fax transmittals and the testimony of two Sterling employees
that consent was routinely elicited prior to sending fax transmittals. Sterling also contends that
there is no way to determine consent due to lack of record keeping. However, Sterling may not
rely on its own failure to obtain and retain records of who consented to receiving fax
advertisements in order to defeat class certification in this matter. See Mullins, 795 F.3d at 668
(“[R]efusing to certify on this basis effectively immunizes defendants from liability because they
chose not to maintain records of the relevant transactions.”).
Here, the class members’ claims arise under the same federal statute – the TCPA. As the
Seventh Circuit has noted, class certification is normal in litigation under the TCPA because the
main questions, such as whether a given fax is an advertisement, are common to all recipients.
Ira Holtzman, 728 F.3d at 684. In this case, the claims relate to each member’s receipt of faxes
advertising Sterling’s goods and services. Common questions include whether the faxes were
“advertisements” under the TCPA, whether class members consented to receive the faxes, and
whether Sterling’s acts were willful or knowing. Sterling’s arguments regarding consent are also
questions that are common to the class and central to determination of the claims of the class
members. 8 Accordingly, predominance is satisfied.
Superiority
Rule 23(b)(3) also requires that a class action be “superior to other available methods for
fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Here, there are a
large number of potential class members each with the same claim under the same statute and
8
Sterling also asserts that individualized issues regarding whether a fax constitutes an advertisement will
predominate. However, as Sterling notes, the TCPA only applies to faxes advertising the commercial availability or
quality of any property, goods, or services. Whether the faxes were advertisements as defined by the TCPA is a
common question necessary for each member to establish to make a prima facie showing. If the same evidence will
suffice for each member, then it becomes a common question. Messner, 669 F.3d at 815. Accordingly, Sterling’s
argument is rejected.
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each potentially entitled to a relatively small recovery – the statutory damages under the TCPA
are only $500. 47 U.S.C. § 227(b)(3). Deciding each claim separately would be an extremely
inefficient use of both judicial and party resources and because of the small individual recovery,
many plaintiffs would not even bring their claims. This situation makes Plaintiff’s claims ideal
for resolution as a class action. See Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th
Cir.2006) (“Rule 23(b)(3) was designed for situations ... in which the potential recovery is too
slight to support individual suits, but injury is substantial in the aggregate”) citing Mace v. Van
Ru Credit Corp., 109 F.3d 338, 344 (7th Cir.1997). As such, this Court finds that the resolution
of these issues on a class-wide basis is superior to allowing repetitive individual suits.
Accordingly, Plaintiff meets the requirements for class certification under Rule 23.
Conclusion
For the foregoing reasons, Plaintiff’s Amended Motion for Class Certification (Doc. 68)
is GRANTED and the Court CERTIFIES the following class pursuant to Federal Rule of Civil
Procedure 23:
All persons in Defendant’s “central file’ or “dead file” databases who were
successfully sent one or more facsimiles in the four years prior to April 3,
2014, from Defendant The Emery Wilson Corporation, d/b/a Sterling
Management Systems advertising its goods and services.
The Court APPOINTS Dr. Robert L. Meinders D.C., LTD. as Class Representative. The
Court further APPOINTS Phillip Bock, Christopher Tourek, James Smith, Jonathan Piper and
the law firm Bock & Hatch, LLC as Class Counsel.
IT IS SO ORDERED.
DATED: June 21, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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