Compressor Engineering Corporation v. Chicken Shack, Inc. et al
OPINION AND ORDER granting 82 Motion to Certify Class; granting 92 Motion for Leave to File; denying 96 Motion for Leave to File; granting 99 Motion for Leave to File; granting 110 Motion for Leave to File. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case number: 10-10059
Paul D. Borman
United States District Judge
CHARLES J. THOMAS, JR.,
OPINION AND ORDER:
(1) GRANTING PLAINTIFF’S MOTION TO CERTIFY A CLASS AND APPOINTING
CLASS COUNSEL (ECF NO. 82);
(2) GRANTING PLAINTIFF’S MOTIONS FOR LEAVE TO FILE SUPPLEMENTAL CASE
AUTHORITY (ECF NOS. 92, 99, 110); AND
(3) DENYING DEFENDANT’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL
LEGAL MEMORANDUM (ECF NO. 96)
Before the Court is Plaintiff Compressor Engineering Corp.’s Motion to Certify a Class
pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). (ECF No. 82.) Defendant
Charles J. Thomas, Jr. (“Thomas”) filed its response and Plaintiff thereafter filed a reply. (ECF
Nos. 85 & 90).
Thereafter, Plaintiff filed an unopposed motion for leave to file recent Sixth Circuit case
authority (ECF No. 92), a second Motion for Leave to file supplemental authority (ECF No. 99),
and a third Motion for leave to file Supplemental Authority (ECF No. 110). Defendant Thomas
filed a Supplemental Legal Memorandum (ECF No. 96) to which Plaintiff filed a response (ECF
No. 97) and Defendant Thomas thereafter filed a reply (ECF No. 98). A hearing on these
matters was held on May 28, 2015.
Thereafter, on July 1, 2015, Defendant filed a motion to stay the proceedings (ECF No.
111.) On October 12, 2015, Defendant filed a Motion to Dismiss pursuant to 12(b)(1) or in the
Alterative Stay the Proceedings. (ECF No. 116.) On February 3, 2016, this Court denied
Defendant’s initial motion to stay, and denied Defendant’s motion to dismiss, but granted
Defendant’s request to stay this action pending the Supreme Court’s decision in Robins v.
Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S.Ct. 1892 (2015). More recently,
on October 27, 2016, the Court lifted the stay in this action and granted Defendant’s motion for
leave to file a second supplemental memorandum in opposition to Plaintiff’s Motion for Class
Certification. (ECF No. 127.) Defendant filed his Supplemental brief on October 27, 2016 and
Plaintiff’s filed its Supplemental Response on November 17, 2016. (ECF No. 129.)
For the reasons set forth below, the Court will GRANT Plaintiff’s motion for class
certification, grant Plaintiff’s motions to file supplemental case authority, and deny Defendant’s
motion for leave to file a supplemental legal memorandum.
This Court addressed the procedural history of this case in an earlier Opinion an Order
and incorporates it here:
On January 6, 2010, Plaintiff filed the instant class action complaint under the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 as amended by
the Junk Fax Prevention Act of 20051 against Defendants Chicken Shack, Inc.,
Chicken Shack Depot, Inc., and Charles Thomas, Jr. (ECF No. 1). On February
5, 2010, Defendant Thomas filed a motion to dismiss arguing the Court lacked
subject matter jurisdiction over Plaintiff’s TPCA claims. (ECF No. 5). Plaintiff
The facsimile at issue was sent on November 6, 2005. This post-dates the amendment
of the TCPA by the Junk Fax Prevention Act of 2005 that took effect on July 9, 2005.
then filed a Motion for Leave to File Amended Complaint. (ECF No. 8). On
May 21, 2010, Magistrate Judge Virginia Morgan denied Plaintiff’s motion to
amend finding it was futile because the Court lacked subject matter jurisdiction.
(ECF No. 14). On July 19, 2010, this Court dismissed the complaint holding that
the Court lacked subject matter jurisdiction over the TCPA claims. (ECF No. 18).
Plaintiff filed a notice of appeal on July 22, 2010. (ECF No. 21).
On May 17, 2011, the United States Court of Appeals for the Sixth Circuit
entered an Order remanding this case for reconsideration in light of its recent
decision, Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010). (ECF
No. 23). EchoStar held that federal district courts do have subject matter
jurisdiction over TCPA claims.
Thereafter, on June 22, 2012, the Court entered an Opinion and Order that
reopened this action in light of EchoStar and also ordered Plaintiff to show cause
why Defendants Chicken Shack, Inc. and Chicken Shack Depot, Inc. should not
be dismissed for lack of prosecution. (ECF No. 24.) The Order also required the
parties file supplemental briefing on Defendant Thomas’s motion to dismiss and
Plaintiff’s motion to amend. (Id.).
On August 15, 2013, this Court denied Defendant Thomas’s motion to dismiss,
granted Plaintiff’s motion to correct the class description and denied Plaintiff’s
request to add certain parties as defendants. The Court also dismissed Chicken
Shack, Inc. and Chicken Shack Depot, Inc. without prejudice leaving Defendant
Thomas as the sole defendant. (ECF No. 43.) On September 5, 2013, Plaintiff
filed its Amended Complaint. (ECF No. 46.)
Defendant Thomas sought certification of the Court’s order denying his motion to
dismiss and to stay the case pending appeal pursuant to Federal Rules of Civil
Procedure 54(b) and 28 U.S.C. 1292(b). (ECF No. 50.) The Court affirmed the
Magistrate Judge’s order denying that motion on September 30, 2014. (ECF No.
105.) Defendant Thomas also sought to reassign this action alleging it was a
companion to other cases before Judge Sean Cox in this District. That request
was denied by the Court on September 25, 2014. (ECF No. 104.)
(ECF No. 108, at *1-3.)
In February 2015, the Court denied Defendant’s Motion to Dismiss based on a lack of
jurisdiction, finding that Defendant’s previous Offer of Judgment did not moot this action. (ECF
No. 108.) As noted above, this Court also denied Defendant’s second Motion to Dismiss based
upon a second offer of judgment (ECF No. 119).
Factual Background Regarding Junk Fax Cases
This is one of the numerous “junk fax” cases that have been filed by Plaintiff’s attorneys
in courts around the country involving facsimiles sent by the company “B2B.” Indeed, Judge
Gerald Rosen set forth a succinct version of the common background facts in these cases which
is relevant to this action:
Anderson + Wanca and Bock & Hatch are two Chicago area firms that specialize
in representing plaintiffs in case action lawsuits under the Telephone Consumer
Protection Act as amended by the Junk Fax Prevention Act of 2005 (the
“TCPA”). The TCPA authorizes $500.00 in statutory damages for faxing an
unsolicited advertisement, and each transmission is a separate violation. And the
award triples upon a showing of wilfulness. Because plaintiffs may enforce the
statute via class action and because a single advertisement is often faxed to
hundreds – if not thousands– of phone numbers, suits under the Act present
lucrative opportunities for plaintiffs’ firms.
A woman named Caroline Abraham functioned as a modern-day “typhoid
[M]ary” in the small business communities in which she operated. As the
Seventh Circuit explained [in Reliable Money Order, Inc. v. McKnight Sales Co.,
704 F.3d 489 (7th Cir. 2013)], Abraham and her company, Business-to-Business
Solutions (“B2B”) sit at the center of this lawsuit and scores of others: B2B
contracted with businesses to send advertisements via facsimile. Advertisers
would pay a fee, and B2B would send the ad to hundreds of fax numbers
purchased from InfoUSA, Inc. (a practice known as “fax-blasting”). Abraham,
B2B’s sole employee, never obtained from the fax recipients[’] permission to
send them the advertisements.
Anderson + Wanca came across B2B and Abraham while they were investigating
four putative class actions in Illinois. They learned that the defendants in those
four cases had contracted with B2B to fax the offending advertisements.
Unsurprisingly, Caroline Abraham’s B2B records became the focus of discovery.
Abraham ultimately produced spreadsheets in discovery that listed only the
recipients of the advertisements at issue in the four cases.
Flush with success, Anderson + Wanca recognized that the B2B hard drives and
fax lists likely contained a treasure trove of potential clients for putative class
action lawsuits. So, despite having all information necessary to certify the classes
in the [original] Four Cases, Anderson + Wanca continued pushing Caroline
Abraham to disclose all B2B fax transmission data. Ryan Kelly, an attorney at
Anderson + Wanca, met with Caroline Abraham and asked her for the actual
backup disks and hard drive. He told her that “nobody would look at anything on
these media not related” to the Four Cases. Indeed, Kelly even emailed Ms.
Abraham a copy of the protective order filed in one of the Four Cases, explaining
that it “will prevent [Kelly] from disclosing any of the back-up disks or harddrive to any third-party.” To receive those protections, however, the producing
party had to stamp documents confidential or notify plaintiff’s counsel of their
confidential nature at the time of production. Ms. Abraham continued to resist.
Ultimately, plaintiff’s counsel subpoenaed Joel Abraham to testify at a deposition.
The subpoena also ordered Mr. Abraham to produce, at the time of his deposition,
the back-up disks and hard drive. Appearing at the deposition with attorney Eric
Ruben, Joel Abraham produced the materials. Neither he nor Ruben, who had
read the protective order, asserted confidentiality. Even so, Anderson + Wanca
later instructed defense counsel to “treat the DVD produced by Joel Abraham as
confidential pursuant to the protective order[.]”
The back-up disks and hard drive revealed not only the recipients of fax
advertisements sent by the defendants in the Four Cases but the names of other
B2B clients as well.
Then, armed with data from B2B’s electronic files, Plaintiff’s counsel filed scores
of putative class actions under the TCPA. The B2B files provided a treasure
trove of potential new clients for Anderson + Wanca, revealing the names of other
potential defendants who contracted with B2B to send unsolicited fax advertising
and listing the recipients of that advertising .... Anderson + Wanca attorneys have
filed over one hundred putative class actions under the Act, all rooted in data
recovered from the B2B disks and hard drive.
Avio, Inc. v. Alfoccino, Inc., 18 F.Supp. 3d 882, 884-85 (E.D. Mich. 2014), rev’d on other
grounds, 792 F.3d 627 (6th Cir. 2015), (quoting APB Assoc., Inc. v. Bronco’s Saloon, Inc., 297
F.R.D. 302, 304-06 (E.D. Mich. 2013)2 (which in turn relied upon Reliable Money Order, Inc. v.
McKnight Sales Co., 704 F.3d 489 (7th Cir. 2013)); see also American Copper & Brass, Co. v.
The APB Associates decision was consolidated with the decisions in Compressor Eng’g
Corp. v. Mfrs. Fin. Corp., 292 F.R.D. 433 (E.D. Mich. 2013) and Machesney v. Lar-Bev of
Howell, Inc., 292 F.R.D. 412 (E.D. Mich. 2013).
Lake City Ind. Prods., 757 F.3d 540, 542 (6th Cir. 2014) (relying upon McKnight for background
and description of the “practice of fax-blasting and noting that B2B was a notorious fax-blasting
Pertinent Facts Regarding the Instant Action
In this particular fax-blasting action, Defendant hired a man, who was referred to him by
another business owner to promote his restaurant businesses by fax advertisement. (ECF No. 82,
Pl.’s Mot. to Certify, Ex. A, Thomas Dep. at 27-28, 31.) Defendant was eventually charged
$338.00 by B2B for 10,000 fax advertisements. (Id. at 32-33, 70-72; see Ex. C, Lewis Decl. Ex.
2, B2B000004-05). Defendant also worked with B2B to create the advertisement. (Thomas
Dep. at 51-56; Lewis Decl. Ex. 2, B2B000020-26.) Defendant was never provided a list of
numbers or names and addresses of the persons to whom the faxes were going to be sent. (Id. at
37.) It is appears undisputed that B2B “created the target list [of business persons in Michigan]
by culling relevant targets from a third-party database B2B had purchased from InfoUSA years
earlier.” (ECF No. 82, at *1-2; Ex. B, Abraham Decl. at ¶ 7.) Defendant did not recall asking
any fax recipient for their permission or consent to send the fax advertisements. (Thomas Dep.
at 41-42.) Indeed, Abraham stated that B2B did not obtain prior express permission or consent
from the targeted companies before it would send the faxes. (Abraham Decl. ¶¶ 6-7.)
Plaintiff alleges in its Amended Complaint that it received a single unsolicited fax
advertisement on its facsimile machine on approximately November 6, 2005. (Am. Compl. ¶
12.) James Berwick, the president and owner of Plaintiff, testified that he did not recall
receiving the fax that was sent on behalf of Defendant. (ECF No. 85, Def.’s Resp., Ex. D,
Berwick Dep. at 11, 56.) Berwick also testified that he did not keep the original fax, does not
have the transmission log from his fax machine that allegedly received the fax at issue, and no
longer has the fax machine either. (Id. at 11-12, 56, 71.)
Plaintiff relies upon its expert, Robert Biggerstaff, to show that the archived computer
data (mined from Abraham’s hard drive and disks) evidences that Defendant’s advertisement
was successfully faxed 6,142 times to 6,138 persons. (ECF No. 82, Ex. D, Jan. 19, 2010
Biggerstaff Report, at ¶ 15). Specifically, B2B’s “directory fax1” “log file... shows that 1,954
transmissions were successful and error-free transmissions of a 1-page fax” and B2B’s “fax2”
“log file ... shows that 4,188 transmissions were successful and error-free transmissions of a 1page fax.” (Id. at ¶¶ 13, 14). Plaintiff received a “successful error-free fax transmission to its
fax machine at 313-491-2766 on November 6, 2005.” (Id. at Ex. 4, page 48, line 2229, Ex. 5,
page 6, line 1279).
Plaintiff now seeks to certify a class with following description: “All persons who were
sent one or more faxes on November 6, 2005 advertising ‘Chicken Shack’ restaurant as offering
‘Michigan’s Best Chicken and Ribs.’”3 (Pl.’s Mot. to Certify, at 11). Defendant argues that the
Motion for Class Certification must be denied because Plaintiff has failed to meet the
prerequisites under Federal Rule of Civil Procedure 23, including inter alia: 1) Plaintiff and
putative class claims are barred by the statute of limitations; 2) the proposed class counsel does
not meet the requirements regarding the adequacy of class counsel; 3) Plaintiff fails to meet the
adequacy requirements for class representative; 4) individual issues predominate over common
issues of fact and law; 5) the proposed class definition is flawed because it includes persons who
This proposed class definition differs from the definition set forth in the Amended
lack standing to assert a TCPA claim; and 6) that a class action is not a superior method for
adjudicating these claims.
III. LEGAL STANDARD
“A district court has broad discretion to decide whether to certify a class.” In re
Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838, 850 (6th
Cir. 2013) (citation omitted); see also In re Am. Medical Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.
1996). Yet, it bears repeating that “[t]he class action is ‘an exception to the usual rule that
litigation is conducted by an on behalf of the individual named parties only.’” Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012) (quoting Wal-Mart v. Dukes, --U.S. --- , 131 S.Ct. 2541, 2550 (2011)). Moreover, “Rule 23 does not set forth a mere pleading
standard. A party seeking class certification must affirmatively demonstrate his compliance with
the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc..” Wal-Mart, 131 S.Ct. at 2551 (emphasis in
original); In re Am. Med. Sys., 75 F.3d at 1079 (noting the party seeking certification bears the
burden in showing all prerequisites under Rule 23 are satisfied).
To obtain class certification pursuant to Rule 23 “the plaintiffs must show that ‘(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.” In re Whirlpool, 722 F.3d at 850 (quoting FED. R. CIV. P.
23(a)). “These four requirements – numerosity, commonality, typicality, and adequate
representation – serve to limit class claims to those that are fairly encompassed within the claims
of the named plaintiffs because class representatives must share the same interests and injury as
the class members. Id. at 850-51 (citing Wal-Mart, 131 S. Ct. at 2550). When reviewing a
plaintiff’s motion for class certification, the district court must conduct a “rigorous analysis” of
the Rule 23 requirements. In re Am. Med. Sys., 75 F.3d at 1078-79 (quoting General Tel. Co. of
Southwest v. Falcon, 457 U.S. 147, 160).
In addition to meeting the four prerequisites of Rule 23(a), the proposed class must meet
at least one of the three requirements set forth in Rule 23(b). Wal-Mart, 131 S.Ct. at 2548
(2011). In the present action, Plaintiff seeks class certification under Rule 23(b)(3), which
requires that the “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 fairly and efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3).
Plaintiff bears the burden to show that all of the class certification prerequisites have been met.
In re Whirlpool, 722 F.3d at 851 (citation omitted).
As an initial matter, the Court notes that Plaintiff previously filed three motions to file
supplemental case authority (ECF Nos. 92, 99 & 110). Defendant also filed a Motion for Leave
to file a Supplemental Legal Memorandum. (ECF No. 96.) As the Court explained on the
record during the hearing on this matter, the Court accepts Plaintiff’s supplemental case
authority providing pertinent case law citations, and denies Defendant’s motion to supplement its
legal argument. More recently, in its Order lifting the stay in this action, the Court granted
Defendant’s motion to file a second Supplemental Memorandum and allowed Plaintiff to file a
Supplemental Response. (ECF Nos. 127, 128 & 129.)
Statute of Limitations
In its Second Supplemental Memorandum, Defendant argues that the Court should deny
Plaintiff’s motion for class certification because Plaintiff’s claims and those of the proposed
class are time barred. (ECF No. 128, at *4-11.)
This Court previously examined the issue of whether these claims were time barred and
whether the statute of limitations was tolled in its August 15, 2013, Opinion and Order denying
Defendant’s motion to dismiss. (See ECF No. 43.) The Court noted that the “basis” for
Plaintiff’s claim occurred on November 6, 2005 more than four years before Plaintiff filed the
present action on January 6, 2010, and was therefore outside the applicable statute of limitations.
(ECF No. 43, at *8.) Plaintiff’s counsel, however, had previously filed a different class action
complaint against Defendant Thomas in Wayne County Circuit Court on June 29, 2009, Central
Alarm Signal, Inc. v. Chicken Shack, Inc., et al., No. 09-015989 (“Central Alarm”). (Id., at * 4.)
That state action was filed within the four year statute of limitations applicable to Plaintiff’s
TCPA claim. (Id., at *9.) Similar to the present action, Central Alarm alleged a class action
violation of the TCPA against Defendant Thomas, as well as Chicken Shack, Inc. and Chicken
Shack Depot, Inc. (Id. at *4.) The Central Alarm case was voluntarily dismissed with prejudice
on November 19, 2009. (Id.)
In denying Defendant’s motion to dismiss, this Court held that Plaintiff was a putative
member of the class in Central Alarm and thus the statute of limitations was tolled during the
pendency of the Central Alarm case. (Id., at *8-9, citing American Pipe & Const. Co. v. Utah,
414 U.S. 538, 552 (1974); Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (1983).) This Court
also determined that the statute of limitations had been tolled for both Plaintiff’s individual
TCPA claim as well as the class action claim. (Id., at *10, citing In re Vertue, Inc. Marketing and
Sales Practices Litigation, 719 F.3d 474, 479-80 (6th Cir. 2013)).
In his Second Supplemental Memorandum, Defendant recognizes that filing of a class
action tolls the running of the four year statute of limitations for all members of the putative
class action “who would have been parties had the suit been permitted to continue as a class
action.” American Pipe, 414 U.S. at 552; Crown Cork & Seal Co. v. Parker, 462 U.S. 345
(1983). Defendant now argues, however, that in the present action the statute of limitations was
not tolled by the filing of the Central Alarm complaint because that proposed class did not
include the Plaintiff of the currently proposed class.
The class definition as defined in Central Alarm was:
All persons who (1) on or after four years prior to the filing of this action (2) were
sent telephone facsimile messages of material advertising the commercial
availability of goods or services by or on behalf of Defendants (2) with respect to
whom Defendants cannot provide evidence of prior express permission or
invitation for the sending of such faxes, and (4) with whom Defendants did not
have an established business relationship.
(ECF No. 128, Ex. C, Central Alarm Comp., at ¶ 15, Ex. A (subject fax)) Defendant claims that
this definition did not include persons who were sent the fax that Plaintiff or Central Alarm
attached to their complaints (Exhibit A) because that document only advertised the goods and
services of South Shack I and South Shack II (which are solely owned and operated by
Defendant) and not the “goods and services” of Chicken Shack, Inc., Chicken Shack Depot, Inc.
or Defendant. (Thomas Dep., at 8-10, 51-55.) Defendant also contends that the class definitions
in this action erroneously defined the class in reference to a document advertising “the goods or
services” of the individual Defendant Thomas which would not include Exhibit A.4
The Court finds Defendant’s argument unpersuasive. It is clear that the class definition
as alleged in Central Alarm included persons sent facsimile messages advertising the availability
“of goods or services by or on behalf of Defendants.” (Central Alarm Comp., at ¶ 15.)
Accordingly, the class included persons sent such facsimiles on behalf of Defendant Thomas.
Stated another way, the Central Alarm complaint did not define the facsimile to be limited to
advertising the specific “goods and services” of a particular defendant. Further, the class
definitions in the original complaint and the Amended Complaint both explicitly refer and attach
the same facsimile as Exhibit A as the facsimile attached to Central Alarm and make clear that
the class included all to whom were sent that particular facsimile. (Cf. Central Alarm Compl., ¶¶
11, 13, 15, Ex. A; ECF No. 1, ¶¶ 10, 12, Ex. A; ECF No. 46, ¶ 12, 14, Ex. A.) Consistent with
those class definitions, Plaintiff’s proposed class definition in its motion for class certification
refers directly to the language used in the facsimile attached to the Central Alarm complaint, the
original and the operative Amended Complaint in this action: “All persons who were sent one or
The original complaint in this action alleged the following class definition:
All persons that are holders of telephone numbers to which a facsimile
transmission was sent on behalf of Defendants advertising or promoting the goods
or services of Defendants at any time between four years prior to the filing of this
suit to and including the present.
(ECF No. 1, at ¶14.) The Amended Complaint in this action alleged a class consisting of the
All persons that are holders of telephone numbers to which a facsimile
transmission was sent on behalf of Defendant advertising or promoting the goods
or services of Defendant at any time from August 13, 2005 to present.
(ECF No. 46, at ¶ 16.)
more faxes on November 6, 2005 advertising “Chicken Shack” restaurant as offering
“Michigan’s Best Chicken and Ribs.” (ECF No. 82, at *1). Accordingly, the Court finds that
the class alleged in the Central Alarm complaint is consistent with and included the classes
alleged in the original and Amended Complaints in this action and the class proposed in the
Motion for Class Certification. Further, Defendant Thomas is the sole owner of the
establishments advertised in the facsimile attached to the Central Alarm complaint as well as
Exhibit A to the original complaint and Amended Complaint in this action. (See Thomas Dep., at
8-10, 51-55.) Accordingly, it is arguable that the facsimile attached to all the complaints as
Exhibit A does refer to Defendant Thomas’s “goods and services.”
For all these reasons, the Court concludes that Plaintiff’s claims are not time barred
because the Central Alarm complaint included Plaintiff and the members of the currently
proposed class and thus the statute of limitations was tolled pursuant to American Pipe and
Class Definition and Ascertainability of the Class
“[B]efore a court may certify a class pursuant to Rule 23, ‘the class definition must be
sufficiently definite so that it is administratively feasible for the court to determine whether a
particular individual is a member of the proposed class.’” Young, 693 F.3d 532, 537-38 (citation
omitted). In evaluating this “ascertainability” requirement, the Sixth Circuit has indicated that
class definitions which are “amorphous” or “imprecise” do not meet this standard. Id at 537-38
(citation omitted); see also Avio, Inc. v. Alfoccino, Inc. (Avio II), 311 F.R.D. 434, 441 (E.D.
Mich. 2015) (granting class certification); see also John v. National Sec. Fire and Cas. Co., 501
F.3d 443, 445 (5th Cir. 2007) (holding that “[t]he existence of an ascertainable class of persons
to be represented by the proposed class representative is an implied prerequisite of the Federal
Rule of Civil Procedure 23.). Further, “[f]or a class to be sufficiently defined, the court must be
able to resolve the question of whether class members are included or excluded from the class by
reference to objective criteria. In some circumstances, a reference to damages or injuries caused
by particular wrongful actions taken by the defendants will be sufficiently objective for proper
inclusion in a class definition.” Young, at 538-39 (citation omitted).
In the present action, as noted supra, Plaintiff seeks to certify a class with the following
description: “All persons who were sent one or more faxes on November 6, 2005 advertising
‘Chicken Shack’ restaurant as offering ‘Michigan’s Best Chicken and Ribs.’” (ECF No. 82, at
*11.) Defendant argues, however, that the class definition is fatally flawed because the court
would need to delve into individualized determinations to ascertain the members of the class,
specifically: (1) whether the class included persons or entities that no longer or never existed,
such as dissolved corporations (see ECF No. 85, Ex. R, Dillard Aff., identifying non-existent
companies); (2) whether the class included persons or entities that had a preexisting business
relationship with Defendant; or (3) whether the class includes persons who lack standing under
the TCPA or Article III. (ECF No. 85, at *17-19.) Additionally, in his second Supplemental
Memorandum, Defendant argues that the faxes were not sent “on behalf” of Defendant because
he only authorized sending faxes to three or four hundred persons in a seven to ten mile radius of
his restaurants. (ECF No. 128, at * 4, 15-16.) Defendant concludes that the class definition
proposed by Plaintiff is over-broad because it includes so many individuals who lack a claim
against Defendant. The Court addresses each argument below.
As an initial matter, the Court notes that in July, 2014 the Sixth Circuit issued American
Copper & Brass, Inc. v. Lake City Industrial Products, Ind., 757 F.3d 540 (6th Cir. 2014). In
American Copper, the Sixth Circuit upheld a district court’s class certification and subsequent
grant of summary judgment (in favor of plaintiffs) in a near identical B2B fax-blaster TCPA
case. In American Copper, the defendant relied upon Machesney v. Lar-Bev of Howell, Inc., 292
F.R.D. 412 (E.D. Mich. 2013) and argued that the class definition improperly named persons
who may not have “received, noticed or printed the fax” or who were not the owners of the fax
machines and therefore lacked standing under the TCPA. Id. at 544. The Sixth Circuit rejected
this argument and explained:
We are unpersuaded by Machesney’s analysis of the TCPA. For starters, the
Machesney court had no reason to consider the legislative history of the TCPA at
all. The plain language of the statute prohibits the ‘use [of] any telephone
facsimile machine, computer, or other device to send, to a telephone facsimile
machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). Because the
language of the TCPA is clear, the district court in Machesney should not have
waded into the legislative history. ... Recovery under the TCPA’s private-right-ofaction provision, moreover, is not premised on the ownership of a fax machine.
See 47 U.S.C. § 227(b)(3); see also Chapman v. Wagener Equities, Inc., 747 F.3d
489, 492 (7th Cir. 2014) (holding that ownership of a fax machine is not a
prerequisite for standing under the TCPA).
And that is not the only error in Machesney’s analysis of the TCPA. The
Machesney court’s conclusion that the TCPA was “intended to address ... the cost
of the paper and ink incurred by the owner of the fax machine,” 292 F.R.D. at
427, is too narrow. .... unsolicited fax advertisements impose costs on all
recipients, irrespective of ownership and the cost of paper and ink, because such
advertisements waste the recipient’s time and impede the free flow of commerce.
Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684 (7th Cir. 2013) (“Even a
recipient who gets the fax on a computer and deletes it without printing suffers
some loss: the value of the time necessary to realize that the inbox has been
cluttered by junk.” (emphasis in original) .... Accordingly, to the extent that Lake
City relies on Machesney for the proposition that owners (and only owners) of fax
machines have standing to sue under the TCPA, we reject Lake City’s argument.
American Copper, 757 F.3d at 544-45 (some internal citation omitted). In light of this case law,
the Court rejects Defendant’s argument that ownership of the fax machine or receipt of the fax is
necessary to confer standing to sue under the TCPA.
Defendant also contends that the class is not ascertainable because it includes or might
include businesses that no longer exist (or never existed). First, to the extent that Defendant
relies upon Machesney v. Lar-Bev of Howell, Inc., 292 F.R.D. 412 (E.D. Mich. 2013) to support
his argument, that opinion and order was vacated upon reconsideration in light of the American
Copper decision. See Machesney v. Lar-Bev of Howell, Inc., 317 F.R.D. 47 (E.D. Mich., 2016);
Am. Copper, 757 F.3d at 545. Further, the Sixth Circuit has indicated (although in dictum) that
these exact fax records “are objective data satisfying the ascertainability requirement.” Am.
Copper, 757 F.3d at 545; see also Avio II, 311 F.R.D. at 442 (noting that the Sixth Circuit
“makes quite clear that the panel considered the class ascertainable based on the objective data
contained in B2B’s records – the very same record involved in APB Associates and this case.”).
Further, Defendant himself has illustrated the “administrative feasibility” of the class
definition and evidence at issue: Defendant has begun to sort through the fax numbers and
determine whether the businesses continue to exist (see Ex. R). Accordingly, the fax numbers
constitute “objective criteria” the Court can use to determine class membership and such a
determination is administratively feasible. Young, 693 F.3d at 537-38; see also Chapman, 747
F.3d at 492 (finding that “[h]ow many (if any) of the class members have a valid claim is the
issue to be determined after the class is certified. Recipients of faxes who don’t have rights
under the Telephone Consumer Protection Act just wouldn’t be entitled to share in the damages
awarded to the class by a judgment or settlement.”).
Defendant next argues that the class definition is unworkable based on the fact that the
proposed class would include members that may have had an existing business relationship
(“ERB”) with Defendant. This argument is also easily dispatched. Defendant is correct that the
TCPA allows a defendant to claim an ERB as a defense against a TCPA action, however, the
statute provides that to establish such a defense a defendant must show 1) the unsolicited
advertisement is from a sender with an ERB; 2) the sender received the number of the telephone
facsimile through either a voluntary communication or directory to which the recipient agreed to
make its number available; and 3) that the unsolicited advertisement contains an opt-out notice
as described in the Act. 47 U.S.C. § 227(b)(1)(C)(i)-(iii) (emphasis added); see also 47 C.F.R. §
64.1200(a)(4)(i)-(iii); 47 U.S.C. § 227(b)(1)(D)(2) (describing the opt-out notice).
In the present case, it is undisputed that the unsolicited facsimile in question did not
contain the required opt-out notice. (See ECF No. 82, Ex. C, Lewis Decl., Ex. 2, at B2B000005,
18-26; Thomas Dep. at 35-36, 51-56). As the Seventh Circuit has explained: “Even when the
Act permits fax ads - as it does to persons who have consented to receive them, or to those who
have established business relations with the sender - the fax must tell the recipient how to stop
receiving future messages.” Ira Holtzman, C.P.A & Assocs. Ltd. v. Turza, 728 F.3d 682, 683
(7th Cir. 2013) (citing 47 U.S.C. § 227(b)(1)(C)(iii)); see also Physicians Healthsource, Inc. v.
Stryker Sales Corp., 1:12-CV-0729, 2014 WL 7109630, *11 (W.D. Mich. Jan. 2015) (Jonker, J.)
(discussing the defenses to the TCPA and noting “[t]he parties focus on the third requirement
because even assuming the first two conditions are satisfied, there is no factual dispute regarding
the absence of any opt-out language on the fax at issue in this case.”); City Select Auto Sales,
Inc. v. David/Randall Assocs. 96 F. Supp. 3d 403, 418-19 (D.N.J. 2015) (finding same).
Therefore, regardless of whether an ERB may have existed between Defendant and some of the
class members, such a defense is defeated by the failure to have the proper opt-out notice (and
the failure to include the proper opt-out notice is common to all potential class members).
Defendant also argues in its response, and in its second Supplemental Memorandum, that
Plaintiff’s proposed class definition is flawed because Plaintiff and the proposed class cannot
establish a “concrete particularized injury” as required under Spokeo v. Robins, --- U.S. ---, 136
S.Ct. 1540 (2016), and thus lack standing. (ECF No. 128, at 23.) To establish standing, a
plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Id., at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). In Spokeo, the
Supreme Court held that to adequately plead an “injury in-fact” as required to have standing
under Article III of the Constitution, a plaintiff must sufficiently allege an injury that is “both
concrete and particularized.” Spokeo, 136 S.Ct. at 1544-45. The Sixth Circuit recently
[Courts] scrutinize the “injury-in-fact” element of standing in order to determine
not just whether Plaintiffs have sufficiently pleaded a statutory injury, but a
constitutional one as well. As the Supreme Court recently affirmed in Spokeo,
Inc. v. Robins, an injury-in-fact contains the two distinct elements of
particularization and concreteness. 136 S. Ct. 1540, 1548-50 (2016). For an injury
to be particularized, “it must affect the plaintiff in a personal and individual way.”
Id. at 1548 (quoting Lujan, 504 U.S. at 560); see also Valley Forge Christian
Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464,
472 (1982) (standing requires that the plaintiff “personally has suffered some
actual or threatened injury”). While “particularization is necessary to establish
injury in fact[,] ... it is not sufficient.” Spokeo, 136 S. Ct. at 1548. A plaintiff
must also show that he suffered a concrete injury, defined as a “de facto” injury,
meaning that the injury “must actually exist.” Id.
Soehnlen v. Fleet Owners Ins. Fund, No. 16-3124, --- F.3d. ---, 2016 WL 7383993, at *3 (6th
Cir. Dec. 21, 2016). The Supreme Court recognized in Spokeo, however, that an injury may be
“intangible” and still be “concrete.” Id., at 1549. The Supreme Court explained that a court
should look to whether the “alleged intangible harm has a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit” and recognized that “Congress
may ‘elevate to the status of legally cognizable injuries concrete, de facto injuries that were
previously inadequate in law.” Id. (citations omitted). The Supreme Court cautioned that a
“bare procedural violation, divorced from any concrete harm” would not suffice to meet the
injury-in-fact requirement but noted that “the risk of real harm” could satisfy the same. Id.
Prior to Spokeo, in Imhoff Investment v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) the
Sixth Circuit held that the TCPA was a statute that “confers new legal rights on a person, [and]
that person will have Article III standing to sue where the facts establish a concrete,
particularized, and personal injury to that person as a result of the violation of the newly created
rights.” Id., at 633 (quoting Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 781 F.3d 1245, 1251
(11th Cir. 2015)). The Sixth Circuit recognized that, through the TCPA, Congress intended to
“remedy a number of problems associated with junk faxes, including the cost of paper and ink,
the difficulty of the recipient’s telephone line being tied up, and the stress on switchboard
systems.” Id. (citing Am. Copper, 757 F.3d 540 (6th Cir. 2014). Accordingly, the Sixth Circuit
reasoned that a plaintiff need not view or print a fax advertisement to “to suffer a violation of the
statutorily-created right to have one’s phone line and fax machine free of the transmission of
unsolicited advertisements.” Id. The Sixth Circuit then concluded that “Biggerstaff’s report is
adequate to establish that Avio was a recipient of Alfoccino’s two unsolicited faxed
advertisements and has standing.” Id., at 634.
In the present action, Defendant contends that Plaintiff cannot “prove” that it suffered a
harm as set forth in Imhoff because Plaintiff cannot evidence that it viewed the fax
advertisement, printed the fax advertisement, or that the fax advertisement interrupted the use of
Plaintiff’s fax lines because the fax advertisement was sent on a Sunday. (ECF No. 128, at *25.)
Defendant’s argument is without merit in light of Imhoff and Spokeo. As the Sixth
Circuit noted in Imhoff, “the specific injury targeted by the TCPA is the sending of the fax and
the resulting occupation of the recipient’s telephone line and fax machine, not that the fax was
actually printed or read.” Imhoff, 792 F.3d at 633 (quoting with approval, Palm Beach Golf
Center-Boca, Inc. v. Sarris, 781 F.3d 1245, 1250-51 (11th Cir. 2015)). Further, the Spokeo
decision did not reach the issue of whether the plaintiff’s alleged injuries constituted a
“concrete” injury, but merely remanded the case to the Ninth Circuit for the proper analysis of
“concreteness.” Here, Plaintiff has provided evidence that Plaintiff’s line was occupied when
the fax advertisement was sent and has also limited its proposed class to successful fax
transmissions which would have occupied the telephone or fax lines. (See Biggerstaff Report, at
¶ 15.) Thus, pursuant to Imhoff and consistent with Spokeo, Plaintiff has evidenced a “concrete”
injury of an “occupied” fax or telephone line that is not merely a “procedural harm divorced”
from a concrete injury. Further, as conceded by Defendant, the injury is “particularized” as to
Plaintiff and the proposed class because they are alleged “recipients” of the offending fax
advertisement. (ECF No. 128, at * 24.) Accordingly, the Court finds that Plaintiff and the
proposed class have standing under Article III to pursue this action and have evidenced a
Class Definition is Over-broad
Defendant notes that the Sixth Circuit had held that for faxes sent prior to August 1,
2006, there is a two-prong analysis used to determine whether a defendant has “us[ed]” a
machine “to send” an unsolicited facsimile advertisement under the TCPA. Siding & Insulation
Co. v. Alco Vending, Inc., 822 F.3d 886, 898 (6th Cir. 2016), 47 U.S.C. § 227(b)(1)(C). A
plaintiff must evidence that a defendant’s goods or services were “advertised in an unsolicited
fax transmission” and also that the faxes were sent “on behalf” of the defendant. Alco, 822 F.3d
at 898. In the present case, based upon the Sixth Circuit’s decision in Alco, Defendant now
argues that Plaintiff’s proposed class definition is over-broad because the proposed class would
contain a majority of people who lack a cognizable claim against Defendant because the
facsimiles sent “on behalf” of Defendant are limited to the number of persons (only 300 to 400
rather than over 6,000) and the region he specified in his instruction to B2B. Thus, Defendant
contends and to the extent B2B disregarded his instructions, Defendant is not liable and the class
is overly-broad and Defendant’s liability to the class cannot be determined using common proof.
Defendant’s argument is misplaced at this stage of the litigation. Plaintiff is currently
moving for class certification, yet, the issue of whether Defendant can be responsible for certain
faxes or whether faxes were sent on his behalf is a question that goes to the merits of this action.
It is well settled that “Rule 23 grants court no license to engage in free-ranging merits inquires at
the certification stage. Merits questions may be considered to the extent – but only to the extent
– that they are relevant to determining whether the Rule 23 prerequisites for class certification
are satisfied.” Amgen, 133 S.Ct. at 1194-95 (citation omitted). The Sixth Circuit recognizes that
“district courts may not ‘turn the class certification proceedings into a dress rehearsal for the trial
on the merits.’” In re Whirlpool, 722 F.3d 838, 851 (quoting Messner v. Northshore Univ.
HealthSys., 669 F.3d 802, 811 (7th Cir. 2012)).
In the present action, Defendant primarily relies upon three cases to support his argument
that he is not liable for any facsimiles not sent “on his behalf” and each of those cases addressed
the issue in the context of a summary judgment motion: Alco, 822 F.3d 886 (motion for summary
judgment); Bridgeview Health Care Ctr. v. Clark, 816 F.3d 935 (7th Cir. 2016) (motion for
partial summary judgment); Palm Beach Golf Center-Boca, Inc. v. Sarris, 12-80178 (S.D. Fla.
Mar. 10, 2016) (attached to Def.’ Supp. Mem. as Ex. E) (cross motions for partial summary
judgment). In fact, in the Palm Beach case, the district court granted the plaintiff’s motion to
certify a class in a separate opinion and order, and rejected the same argument Defendant
advances in this action. Palm Beach Golf Center-Boca, Inc. v. Sarris (“Palm Beach II”), 311
F.R.D. 688, 694 (S.D. Fla. Aug. 5, 2015) (holding “[b]ecause issues regarding the scope of
Defendant’s authorization goes to the merits of the case, the Court does not consider it at this
juncture.”) In Palm Beach II, the court went on to recognize that
[t]he proposed class definition here is similar to those approved by numerous
courts in other B2B TCPA class actions. The majority of courts to consider the
issue have concluded that such a definition, supported by a report like the
Biggerstaff report prepared for this case, satisfies Rule 23's implicit
ascertainability and administrative feasibility requirement.
Id. (collecting authority); see also Bridgeview Health Care Ctr. v. Clark, No. 09-C-5601, 2011
WL 4628744, at *3 (N.D. Ill. Sept. 30, 2011). Further, Defendant’s reliance upon Sandusky
Wellness Center v. ASD Spec. Healthcare, 3:13 CV 2085, 2016 WL 75535, *2 (S.D. Ohio, Jan.
7, 2016) is similarly misplaced. In Sandusky, the district court denied the plaintiff’s motion for
class certification in a TCPA action because “individualized issues” predominated as to whom
the defendant “successfully sent” the facsimile. Id., at *2. In the present case, however, Plaintiff
has provided fax logs indicating which numbers received a facsimile and whether it was
successfully sent. (See ECF No. 82, Ex. D, Biggerstaff Report, ¶ 15 finding that 6,142
successful fax transmissions were successfully sent to and received by 6,138 unique fax
numbers, Exs. 3-5.)
In summary, the Court does not find any issue regarding the ascertainability of the class
that requires the denial of class certification. The Court agrees with Plaintiff that the issue of
whether the facsimiles sent “on behalf of” Defendant is a merits issue that is not relevant at this
time to the proposed class definition. Moreover, the Court notes that “many courts have certified
classes virtually identical to this one in cases involving the very B2B debacle at issue in this
case.” Avio II, 311 F.R.D. at 443 (collecting cases).
Objections raised under Rule 23(a)
Pursuant to Rule 23(a)(1), the numerosity requirement is satisfied when “the class is so
numerous that joinder of all members [of the class] is impracticable. FED. R. CIV. P. 23(a)(1).
Defendant argues in its recent Supplemental Memorandum that Plaintiff cannot satisfy the
numerosity requirement of Rule 23(a)(1) because none of the putative class members were part
of a timely filed class action. Thus, Defendant argues that the class contains zero potential class
members. (ECF No. 128, * 11-14.)
As examined supra, the Court held Defendant’s argument, that the potential class
members’ TCPA claims are barred by the applicable four year statute of limitations, is without
merit. Accordingly, Defendant’s derivative argument that Plaintiff cannot meet the numerosity
requirement based on operation of the statute of limitations is rejected for the same reasons
discussed above. Here, Plaintiff’s evidence shows that Defendant’s single-page fax was sent to
more than 6,000 unique fax numbers. (Pl.’s Mot., Ex. D, Jan., 2010, Biggerstaff Report, ¶ 15.)
Accordingly, the Court finds that Plaintiff has satisfied the numerosity requirement.
Defendant also does not make any particularized objection relating to Rule 23(a)(2)’s
Rule 23(a)(2) requires plaintiffs to prove that there are questions of fact or law
common to the class.... [t]o demonstrate commonality, the plaintiffs’ claims must
depend on 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.
Young, 693 F.3d at 542 (quoting Wal-Mart, 131 S. Ct. at 2551 n. 5).
In the present case, Plaintiff represents that there are common questions of fact regarding
Defendant’s fax campaign and also common legal questions under the TCPA “such as: whether
Defendant’s fax is an ‘advertisement’; whether Defendant violated the TCPA by faxing that
advertisement without first obtaining express invitation or permission to do so; whether Plaintiff
and the other class members are entitled to statutory damages; and whether Defendant’s acts
were ‘willful’ or ‘knowing’ under the TCPA.” (ECF No. 82, at *14.) The Court finds that these
common questions of law and fact satisfy the commonality requirement pursuant to 23(a)(2).
The typicality test in Rule 23(a)(3) “‘limit[s] the class claims to those fairly encompassed
by the named plaintiff’s claims.’” Sprague v. General Motors Corp., 133 F.3d 388, 399 (6th Cir.
1998) (alteration in Sprague, citation omitted). “A necessary consequence of the typicality
requirement is that the representative’s interests will be aligned with those of the represented
group, and in pursuing his own claims, the named plaintiff will also advance the interests of the
class members.” Young, 693 F.3d at 542 (citation omitted).
Defendant argues in his second Supplemental Memorandum that Plaintiff is not a typical
or adequate class representative because Plaintiff is located outside the geographic area specified
by Defendant to B2B and thus, Plaintiff was not sent a fax “on behalf” of Defendant. Defendant
contends that Plaintiff’s “claims are subject to a unique defense: it was not sent a fax on behalf
of Defendant.” (ECF No. 128, at *21.) The Court finds Defendant’s argument unpersuasive in
light of the fact that the aforementioned defense is not “unique,” and by Defendant’s own
calculations the defense would be common to 95% of the proposed class. (See, Id., at *17-18,
claiming only 5% of the proposed class were sent a fax “on behalf” of Defendant.) Additionally,
as set forth supra in Section IV(B)(3), the Court finds the issue of whether the facsimile was sent
“on behalf” of Defendant to members of the proposed class goes to the merits of Plaintiff’s
claim. See Amgen, 133 S.Ct. at 1194-95. Thus, this issue is not relevant to the current issue of
class certification. Further, the Court finds that in the instant case there are very few relevant
differences between the class members. Each potential class member is alleged to have received
the same fax and each potential class member’s claim is premised on the same legal theory
pursuant to the TCPA. Accordingly, the Court finds that typicality requirement has been met.
Adequacy of Representation
Pursuant to Rule 23(a)(4), the court must find that the “representative parties will fairly
and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). The Sixth Circuit has
held that there are two criteria for determining the adequacy of representation: “1) the
representative must have common interests with unnamed members of the class; 2) it must
appear that the representatives will vigorously prosecute the interests of the class through
qualified counsel.” In re Am. Med. Sys. Inc., 75 F.3d at 1083 (quoting Senter v. Gen. Motors
Corp., 532 F.2d 511, 525 (6th Cir. 1976)). Additionally, under Rule 23(g)(1), a court that
certifies a class must appoint class counsel. FED. R. CIV. P. 23(g)(1).
Defendant argues that Plaintiff’s proposed class counsel, specifically Anderson + Wanca,
while experienced, fails to satisfy the requirements of Rule 23(a)(4) and 23(g)(1)(b) because
their lack of integrity and questionable solicitation practices raise serious questions regarding
their “trustworthiness, loyalty to the class and overall ability to fairly and adequately represent
the interest of the class members.” (Def.’s Resp., at 6.)
Rule 23(g) provides that when appointing class counsel a court “may consider any other
matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class,”
“counsel’s knowledge of the applicable law,” and “work counsel has done in identifying or
investigating potential claims in the action.” FED. R. CIV. P. 23(g)(1)(A)(i)-(iii),(B).
Here, Defendant argues that based on the very documented and highly dubious practices
of Anderson + Wanca in establishing its infamous TCPA class action empire, those attorneys
cannot be found to be adequate class counsel under the Federal Rules. Defendant notes that
other courts have found Anderson + Wanca’s behavior “demonstrated a lack of integrity that
casts serious doubt on their trustworthiness as representatives of the class” and that there was
“no basis for confidence that they would prosecute the case in the interest of the class, of which
they are the fiduciaries.” Creative Montessori Learning Ctrs. v. Ashford Gear, LLC, 662 F.3d
913, 917 (7th Cir. 2011) (remanding to the district court with instructions to re-evaluate “the
gravity of class counsel’s misconduct and its implications for the likelihood that class counsel
will adequately represent the class.”).
The Court finds the Seventh Circuit’s treatment of the issue in Reliable Money Order,
704 F.3d 489 (7th Cir. 2013) persuasive. In Reliable Money, the Seventh Circuit elucidated the
standard that “unethical conduct, not necessarily prejudicial to the class, nevertheless raises a
‘serious doubt’ about the adequacy of class counsel when the misconduct jeopardizes the court’s
ability to reach a just and proper outcome in the case.” Id. at 499, 502 (ultimately deciding that
the conduct of Anderson + Wanca did not rise to this level and declining to find “those lapses in
professionalism undermine the district court’s ability to decide the case” but emphasizing
“concern over the challenged actions that Anderson + Wanca attorneys have taken while
investigating this case and others.”).
In the present case, while the Court acknowledges that the actions of Anderson + Wanca
have been questionable in the past, the Court finds that denial of certification on those grounds is
not warranted. In the present case, there is more than one attorney and firm seeking to be
appointed as class counsel. Indeed, the Court finds that Jason J. Thompson with Sommers
Schwartz, P.C. and Tod Lewis and Phillip Bock with Bock, Hatch, Lewis & Oppenheim, LLC
were not related or associated with the earlier misconduct and are all qualified as class counsel.
This result has been reached by other courts in analogous cases. See e.g., Compressor Eng’g
Corp. v. Mfrs. Fin. Corp., 09-cv-14444, 2016 WL 1394649, *14 (E.D. Mich. Apr. 7, 2016)
(appointing Phillip Bock and Jason Thompson as class counsel in analogous TCPA case);
Sandusky Wellness Ctr LLC v. Wagner Wellness, Inc., No. 3: 12 CV 2257, 2014 WL 6750690
(N.D. Ohio Dec. 1, 2014) (Katz, J.) (certifying the class and finding that local counsel had not
been “tainted” by the allegations of misconduct.); cf. Am. Copper & Brass, Inc. v. Lake City
Indus. Prods. Inc., No. 1:09-CV-1162, 2012 WL 3027953, at *6-7 (W.D. Mich. July 24, 2012)
(Quist, J.) (finding Anderson + Wanca and Bock & Hatch had adequate experience “for better or
for worse” in TCPA actions).
To determine the adequacy of representation under Rule 23(a)(4), “the representative
must have common interests with unnamed members of the class.” In re Am. Med. Sys. Inc., 75
F.3d at 1083 (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976)). Here,
Defendant appears to argue that Plaintiff Compressor Engineering is not a proper representative
because Plaintiff is merely a “pawn” of its attorney. Additionally, Defendant notes that
Plaintiff’s president, Berwick, has no memory of the fax at issue, did not retain the fax, or the fax
machine that allegedly received the fax. Defendant argues that this amounts to spoliation of the
evidence and would entitle Defendant to a unique defense against the Plaintiff.
Rule 23 and case law mandates that a class representative share “common interests” with
the unnamed class. Here, Plaintiff, just like the unnamed members of the proposed class,
allegedly received an unsolicited fax from Defendant. Critically, Defendant has failed to cite to
any case law from the Sixth Circuit holding that a possible unique defense would render a party
an inadequate class representative. Additionally, as noted supra, the Sixth Circuit has held that a
person or entity has statutory standing to assert a violation of the TCPA regardless of whether
they viewed or printed the fax advertisement. Imhoff, 792 F.3d at 633; see also Hawk Valley,
Inc. v. Taylor, 301 F.R.D. 169, 184 (E.D. Pa, Mar. 31, 2014) (noting “defendants have not
provided, and I am not aware of any, authority establishing an requirement that a recipient or a
recipient’s representative (in the case of a business-entity recipient) have direct personal
knowledge of the individual fax transmission involved in an action under the TCPA”); Reliable
Money Order, Inc. v. McKnight Sales Co., Inc., 281 F.R.D. 327, 333-34 (E.D. Wis., Mar. 30,
2012) (finding that the named plaintiff was an adequate representative when “the potential class
members likely have no personal knowledge of whether the ‘junk fax’ at issue in this case was
Additionally, Defendant has not shown that Plaintiff’s interests or claims do not align
with the unnamed members of the proposed class. Rather, Plaintiff, through its representative, is
involved in the litigation process and has expressed his general displeasure in receiving the junk
faxes. (See Berwick Dep. at 12). Thus, Plaintiff does not appear to be merely a pawn of his
As an aside, the Court notes that Plaintiff’s proposed definition of the class does not
include “entity” but only the word “person.” The TCPA allows both a person or an entity to
recover damages. Here, the named Plaintiff is not a “person” but rather an “entity” and therefore
could not technically be part of the named class that it is said to represent. This is a easy
revision to the class definition, however, and not a reason to deny certification. See Compressor
Eng., 292 F.R.D. at 445 (noting the same).
Rule 23(b)(3) Requirements
Defendant next argues that Plaintiff has failed to establish that it meets the predominance
and superiority requirements of Rule 23(b)(3). Rule 23(b)(3) provides that “matters pertinent” to
finding that questions of law or fact common to class members predominate over any questions
pertinent to individual members and whether the class action is superior to other methods of
adjudication include: (A) “the class member’s 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 desirability or
undesirability 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)(A)-(D).
The Sixth Circuit has explained that “to satisfy Rule 23(b)(3), named plaintiffs must
show, and district courts must find, that questions of law or fact common to members of the class
predominate over any questions that affect only individual members.” In re Whirlpool, 722 F.3d
at 860 (citing Amgen Inc. v. Conn. Retirement Plans & Trust Funds, --- U.S. ---, 133 S. Ct. 1184,
1195-96 (2013)). “[T]he predominance inquiry must focus on common questions that can be
proved through evidence common to the class. A plaintiff class need not prove that each element
of a claim can be established by classwide proof: ‘What the rule does require is that common
questions ‘predominate over any questions affecting only individual [class] members.’” Id. at
858 (internal citation removed) (citing Amgen Inc., 133 S. Ct. at 1195-96).
Defendant argues common questions of law and fact do not predominate in this action
because the Court would be forced to make a number of “individual inquiries” that would
The Court notes that while Defendant asserts that it is objecting to “commonality,” he
actually sets forth a Rule 23(b) analysis. Therefore, the Court addresses these issues in the
context of Rule 23(b). See In re Am. Med. Sys., Inc., 75 F.3d at 1084 (explaining “[s]ubdivision
(b)(3) parallels subdivision (a)(2) in that both require that common questions exist, but
subdivision (b)(3) contains the more stringent requirement that common issues ‘predominate’
over individual issues).
degenerate into a series of individual trials. Defendant’s list of possible individual inquiries
include: (1) whether Defendant had an ERB with each potential class member; (2) whether the
fax transmissions were actually received (there may be “false positives” and lack of “trace
logs”); (3) whether the potential class members were in existence at the time of the facsimile
transmission or at time of the lawsuit being filed; and (4) whether the facsimile was sent to an
email rather than a fax machine.
First, to the extent that Defendant asserts that Plaintiff cannot show predominance
because Defendant may have had an ERB with the class member or because the fax numbers
may correspond to businesses that were or are no longer operating, those arguments have been
addressed supra in Section IV, Subpart B(1), in relation to the class definition and are
Defendant also relies upon its expert, James Ray Horak, for the proposition that the Court
would have to make individual inquiries regarding whether the facsimile at issue was
“successfully sent” because there may be “false positives.” (Def.’s Resp., Ex. Q, Horak Report.)
Horak opines that B2B used HylaFAX 4.2.1 software to broadcast the fax at issue, and the
HylaFAX confirmation does not account for “false positives” when faxes are reported as
delivered but nothing is received. (Horak Rept., at ¶¶ 34-38.) Horak further opines that
tracelogs would help evidence any “false positives” but that none were produced by Plaintiff in
this matter. Defendant also relies on Horak for the proposition that the Court will need to make
an individual inquiry as to whether the machine that received the fax was a telephone facsimile
machine as defined by the TCPA. (Def.’s Resp. at 15.)
First, as to the issue of “false positives” the Court finds Horak’s opinion unpersuasive.
The TCPA provides that it is unlawful to “use any telephone facsimile machine, computer, or
other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C.
§ 227(b)(1)(C) (emphasis added). Other courts have found that on its face, the TCPA does not
require that a facsimile be received, only that it be sent. See Am. Copper & Brass, Inc. v. Lake
City Ind. Prods., Inc., (Am. Copper I), No. 1:09-CV-1162, 2013 WL 3654550, *4 (W.D. Mich.
July 12, 2013) (Quist, J.), aff’d by 757 F.3d 540 (6th Cir. 2014); see also Hinman v. M and M
Rental Ctr., Inc., 596 F. Supp. 2d 1152, 1159 (N.D. Ill. 2009). Additionally, Horak’s opinion
has been scrutinized in this district and others as being “unpersuasive,” “speculative at best,” and
found to fail to help a defendant meet their burden at the summary judgment stage. See Am.
Copper I, 2013 WL 3654550, *4; Jackson Five Star Catering, Inc. v. Beason, No. 10-10010,
2013 WL 5966340, *2-3 (E.D. Mich. Nov. 8, 2013) (Cook, J.) (striking Horak’s expert opinion
because his opinions were “factually unsupported, legal conclusions, or irrelevant”); see also
Chapman v. Wagener Equities, Inc., 09 C 07299, 2014 WL 540250, *10 (N.D. Ill. Feb. 11, 2014)
(granting motion to certify and rejecting defendant’s same arguments regarding “false positives”
as set forth by Horvak and concluding that such evidence was reliable where the defendant could
not demonstrate a single entry in the logs was actually inaccurate.).
In the instant case, Horak has not cited to any particular instance where a transmission
that is logged by B2B records as sent was actually falsely recorded. Given these facts, and the
fact that the Sixth Circuit has found that this exact information is reliable in both American
Copper and Imhoff, the Court finds Horak’s opinion unpersuasive on the issue of whether this
Court would be forced to make individualized inquires regarding the accuracy of the faxlog.
Defendant also relies upon Horak’s opinion to argue that the Court will need to make
individual inquiries regarding whether each potential class member used a device that fell within
the scope of the TCPA because either (1) the facsimiles were sent over Vonage telephone lines
that do not constitute “regular telephone lines” under the TCPA or (2) some of the facsimiles
were sent as emails.6
In American Copper I, the district court explained:
[r]egarding Horak’s opinion about which devices fall within the scope of the
TCPA, the Court agrees that “this is a potentially complicated issue, since the
TCPA does not define the term ‘regular telephone line,’ and cases and other
authorities are silent on the question.” Indeed, although unsolicited faxes sent to
personal computers equipped with, or attached to, modems and to computerized
fax servers do fall within the TCPA’s prohibitions, “that prohibition does not
extend to facsimile messages sent as email over the Internet.” 18 F.C.C.R. at
14133. However, “a conventional standalone machine is just one device used ...
developing technologies permit one to send and receive facsimile messages in a
myriad of ways .... The TCPA’s definition of telephone facsimile machine’
broadly applies to any equipment that has the capacity to send or receive text or
images. The purpose of the requirement that a ‘telephone facsimile machine’
have the ‘capacity to transcribe text or images’ is to ensure that the prohibition on
unsolicited faxing not be circumvented.” Id.
Am. Copper I, at *5 (internal citation omitted).
In the present case, Defendant does not claim that the fax machines used to broadcast the
transmissions were not within the TCPA’s definition of a telephone facsimile machine and
Horak only “speculates” that other machines were used (on the recipients’ end). Further,
Defendant failed to cite any legal opinion or authority supporting its interpretation (and Horak’s)
regarding what a “regular telephone line” is under the TCPA. Indeed, while Defendant argues
It is clear that the FCC has declared that “faxes sent to personal computers equipped
with, or attached to, modems and to computerized fax servers are subject to the TCPA's
prohibition on unsolicited faxes. However, we clarify that the prohibition does not extend to
facsimile messages sent as email over the Internet.” 18 FCCR 14014 at *14133 (July 3, 2003).
without citation that the Junk Fax Protection Act “indicates a clear distinction between a
telephone facsimile machine, a computer and other device” (Def.’s Resp., at 15), in reality, the
FCC has concluded that “because a sender of a facsimile message has no way to determine
whether it is being sent to a number associated with a stand-alone fax machine or to one
associated with a personal computer or fax server, it would make little sense to apply different
rules based on the device that ultimately received it.” 18 FCCR 14014 at *14133-34 (July 3,
2003); see also Am. Copper I, at * 5 (relying on the same reasoning to reject Horak’s opinion).
Significantly, if the Court does need to legally define what constitutes a “regular telephone line”
under the TCPA, such a question would be a common question as to all potential class
members’s claims. Therefore, such an issue is not fatal to class certification and can be
addressed, if needed, later in the litigation.
Accordingly, Defendant’s arguments that common issues of fact and law do not
predominate are unavailing. Rather, the Court finds that “[c]lass 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.” Turza, 728 F.3d at 684.
Defendant argues in his Response that a class action is not the superior method for
adjudicating the claims in this case because Congress intended these claims to be adjudicated in
small claims court. (Def.’s Resp., at 16.) This argument is unpersuasive. While it may be true
that plaintiffs’ firms received a boon in pursuing these class actions on behalf of plaintiffs who
do not remember the injury (and never would have pursued the action but for a solicitation
letter); it is unrebutted that there are some 6,000 potential class members in this action. It is not
logical to believe that having 6,000 individual lawsuits (whether in state court or federal court)
would be more efficient or a better use of judicial resources. See Chapman v. Wagener Equities,
Inc., 09 C 07299, 2014 WL 540250, *16 (N.D. Ill. Feb. 11, 2014) (finding that the superiority
requirement was satisfied where there were more than 10,000 potential class members, “[w]ith
that large number in mind, it is impossible to imagine individual lawsuits; disposition by class
action is certainly, in this case, an efficient use of judicial resources.”); see also Avio II, 311
F.R.D. at 446 (finding class action a superior method in an analogous TCPA case). For all these
reasons, the Court finds that a class action is a superior method for litigating these 6,000
For all these reasons, the Court GRANTS Plaintiff’s Motion for Class Certification and
Appoints Class Counsel, Jason Sommers, Philip Bock, and Tod Lewis (ECF No. 82). The Court
also GRANTS Plaintiff’s Unopposed Motion for Leave to File Recent Sixth Circuit Authority
(ECF No. 92); DENIES Defendant Thomas’ Motion for Leave to File Supplemental
Memorandum (ECF No. 96); GRANTS Plaintiff’s Motion for Leave to file Supplemental
Authority (ECF No. 99); and GRANTS Plaintiff’s Motion for Leave to File Supplemental
Authority (ECF No. 110).
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 29, 2016
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on December 29, 2016.
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