Michael R. Nack v. Reed Elsevier, Inc.

Filing 1

NOTICE OF REMOVAL from Circuit Court of St. Louis County, MO, Twenty-First Judicial Circuit, case number 12SL-CC00991, with receipt number 0865-3263263, in the amount of $350 Jury Demand,, filed by Reed Elsevier, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet, # 4 Original Filing Form)(Bynum, Theodore)

Report: CZR0026

21ST JUDICIAL CIRCUIT
ST LOUIS COUNTY
CIRCUIT COURT DOCKET SHEET

12SL-CC00991
Case Type:
Status:

MICHAEL R NACK V REED ELSEVIER INC
CC Injunction
Pet Filed in Circuit Ct

Disposition:

Case Filing Date:

Date:
Time:
Page:

12-Apr-2012
10:28:04AM
1

Security Level: 1 Public
16-Mar-2012

Disposition Date:
Release/Status Reason
Change Date

Judge
Plaintiff
Attorney for Plaintiff
Defendant
Filing Date

16-Mar-2012

MARK D SEIGEL (21076)
MICHAEL R NACK (@468586)
MAX GEORGE MARGULIS(24325)
REED ELSEVIER INC (AREDELSEV)

Description

Judge Assigned
DIV 3

SHINELTM

Pet Filed in Circuit Ct

SHINELTM

Confid Filing Info Sheet Filed

CHANEYTL

27-Mar-2012

Summons Issued-Circuit
Document ID: 12-SMCC-3835, for REED ELSEVIER INC.
HAND DELIVERED TO ST LOUIS COUNTY SHERIFF
Service/Attempt Date: 29-Mar-2012

CHANEYTL

28-Mar-2012

Motion Filed
FOR CLASS CERTIFICATION
Filed By: MICHAEL R NACK

02-Apr-2012

Summons Personally Served
THOMPSME
Document ID - 12-SMCC-3835; Served To - REED ELSEVIER INC; Server - CT CORP; Served
Date - 02-APR-12; Served Time - 00:00:00; Service Type - Territory 30; Reason Description Served; Service Text - LC

CODYKATM

E HUT

'9

STATE OF MISSOURI

1- N , 25'

ST. LOUIS COUNTY

IN THE CIRCUIT COURT OF THE ST. LOIII),Cf OUNTY _c)
STATE OF MISSOURI CRUIT (JL

ERK

MICHAEL R. NACK, individually and on behalf of all
others similarly-situated,
Plaintiff,

Cause No. 12SL-CC00991
Division 3

v.
REED ELSEVIER, INC.,
Defendant.

MOTION FOR CLASS CERTIFICATION
COMES NOW Plaintiff, individually and on behalf of all others similarly situated, by
and through its undersigned counsel, and for its Motion for Class Certification, states
1.

This cause should be certified as a class because all of the necessary elements of

Rule 52.08 are met.
2.

Plaintiff requests that the Court certify a class, so the common claims of the Class

members, based on a uniform legal theory and factual allegations applicable to all Class
members, can be resolved on a class-wide basis.
3.

Plaintiff proposes the following Class definition:
All persons who on or after four years prior to the filing of this action, were
sent telephone facsimile messages of material advertising pharmaceutical
products by Or on behalf of Defendant.

4.

Under Rule 52.08(a)(1), to bring a Class action, the Class must be "so numerous

that joinder of all members is impracticable." Rule 52.08(a)(1). Here, there are at least
thousands of persons who fall within the Class definition. Thus, the numerosity requirement of
Rule 52.08(a)(1) is satisfied.
1

Respectfully submitted,
c2w,i
Max G. Margulis, #2 25
MARGULIS LAW GROUP
28 Old Belle Monte Rd.
Chesterfield, MO 63017
P: [phone]
F: [phone]
E-Mail: [e-mail]
Attorney for Plaintiff
Of Counsel
Brian J. Wanca
ANDERSON + WANCA
3701 Algonquin Road, Suite 760
Rolling Meadows, IL 60008
P: [phone]
Phillip A. Bock #6224502
Bock & Hatch, LLC
134 North LaSalle
Chicago, IL 60602
P: [phone]
F: [phone]
Email: [e-mail]

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served on the Defendant's Registered Agent,
CT Corporation System, 120 South Central Ave, Clayton, MO 63105, Fax No. 248-552-1762 on
this 28 th day of March, 2012.

SZ 4),-.

3

/14)

IN THE 21ST JUDICIAL CIRCUIT COURT, ST. LOUIS COUNTY, MISSOURI
Judge or Division:

Case Number: 12SL-CC00991

MARK D SEIGEL
Plaintiff/Petitioner:
MICHAEL R NACK

vs.
Defendant/Respondent:
REED ELSEVIER INC
Nature of Suit:
CC Injunction

Plaintiff's/Petitioner's Attorney/Address
MAX GEORGE MARGULIS
28 OLD BELLE MONTE ROAD
CHESTERFIELD, MO 63017
Court Address:
ST LOUIS COUNTY COURT BUILDING
7900 CARONDELET AVE
CLAYTON, MO 63105

—_ -.,
...
-- 19
r'D
(Date File Stamp)

Summons in Civil Case
The State of Missouri to: REED ELSEVIER INC
Alias:
SERVE CT COPORATION SYSTEM
120 SOUTH CENTRAL AVE
CLAYTON MO 63105

COURT SEALOF

You are summoned to appear before this court and to file your pleading to the petition, a copy of
which is attached, and to serve a copy of your pleading upon the attorney for Plaintiff/Petitioner at the
above address all within 30 days after receiving this summons, exclusive of the da of service. If you fail to
file your pleading, judgment by default may be taken against y4i for th
'et*
anded in the petition.
27-MAR-2012

ST. LOUIS COUNTY

-Noy

(74-

Date
Further Information:
TLC

Clerk

Sheriff's or Server's Return
Note to serving officer: Summons should be returned to the court within thirty days after the date ofARR
,
I certify that I have served the above summons by: ich milt) certify that on this date
El delivering a copy of the summons and a copy 4 t4eStli I„,,
Wit III•11.- *MO
S. Central Ave., I served
0 leaving a copy of the summons and a copy of th@art8119tIffitiletAililic0/1 ”. .1:2. ),11tt
nclent with
.
,4....,4L:Apyirs8nAt4,1=lejeftin '
,)139 deritHendoisrth
of 15 years.
El (for service on a corporation) delivering a copy hf''llYgifihg'sins and -rcOny o t e ton tot"

0 2 70 7

the rogistored arlen o
copy with 8.

[11 other

e endant, by leaving

(title).
1

Jim Buckles

Served at

Shoff, St. LOUIS Gou my

in

(County/City ot St. Louis), MO, on

Depu y

Sheil

.::....

(address)

(date) at

(time).

Printed Name of Sheriff or Server

(Seal)

Signature of Sheriff or Server
Must be sworn before a notary public if not served by an authorized officer:
Subscribed and sworn to before me on
(date).

My commission expires:
Date
Notary Public
Sheriff's Fees, if applicable
Summons
Non Est
Sheriff's Deputy Salary
Supplemental Surcharge $
10.00
Mileage
(
per mile)
miles @ $ .
Total
A copy of the summons and a copy of the petition must be served on each Defendant/Respondent. For methods of service on all classes of

suits, see Supreme Court Rule 54.

OSCA (7-99) SM30 (SMCC) For Court Use Only: Document Id # I2-SMCC-3835

1 of 1

Civil Procedure Form No. 1, Rules 54.01 — 54.05,
54.13, and 54.20; 506.120 — 506.140, and 506.150 RSMo

IN THE 21ST JUDICIAL CIRCUIT COURT, ST. LOUIS COUNTY, MISSOURI
Judge or Division:
MARK D SEIGEL
Plaintiff/Petitioner:
MICHAEL R NACK

Case Number: 12SL-CC00991

vs.
Defendant/Respondent:
REED ELSEVIER INC
Nature of Suit:
CC Inj
unction

Plaintiff's/Petitioner's Attorney/Address
MAX GEORGE MARGULIS
28 OLD BELLE MONTE ROAD
CHESTERFIELD, MO 63017
Court Address:
ST LOUIS COUNTY COURT BUILDING
7900 CARONDELET AVE
CLAYTON, MO 63105

(Date File Stamp)

Summons in Civil Case
The State of Missouri to: REED ELSEVIER INC
Alias:
SERVE CT COPORATION SYSTEM
120 SOUTH CENTRAL AVE
CLAYTON MO 63105
COURT SEAL OF

You are summoned to appear before this court and to file your pleading to the petition, a copy of
which is attached, and to serve a copy of your pleading upon the attorney for Plaintiff/Petitioner at the
above address all within 30 days after receiving this summons, exclusive of the da of service. If you fail to
file your pleading, judgment by default may be taken against
for th
'ef
anded in the petition.

•

27-MAR-2012
Date
ST. LOUIS COUNTY

Clerk

Further Information:
TLC

Sheriff's or Server's Return
Note to serving officer: Summons should be returned to the court within thirty days after the date of issue.
I certify that I have served the above summons by: (check one)
0 delivering a copy of the summons and a copy of the petition to the Defendant/Respondent.
leaving a copy of the summons and a copy of the petition at the dwelling place or usual abode of the Defendant/Respondent with
a person of the Defendant's/Respondent's family over the age of 15 years.
0 (for service on a corporation) delivering a copy of the summons and a copy of the petition to

El

(name)

(title).

0 other
Served at
in

(address)
(County/City of St. Louis), MO, on

(date) at

Printed Name of Sheriff or Server

(Seal)

(time).

Signature of Sheriff or Server

Must be sworn before a notary public if not served by an authorized officer:
Subscribed and sworn to before me on

(date).

My commission expires:
Notary Public

Date

Sheriff's Fees, if applicable
Summons
Non Est
Sheriff's Deputy Salary
10.00
Supplemental Surcharge $
per mile)
Mileage
miles @ $ .
(
Total
A copy of the summons and a copy of the petition must be served on each Defendant/Respondent. For methods of service on all classes of
suits, see Supreme Court Rule 54.

OSCA (7-99) SM30 (SMCC)For Court Use Only: Document Id # 12-SMCC-3835

1 of 1

Civil Procedure Form No. 1, Rules 54.01 — 54.05,
54.13, and 54.20; 506.120 — 506.140, and 506.150 RSMo

STATE OF MISSOURI
ST. LOUIS COUNTY

)

IN THE CIRCUIT COURT OF THE ST. LOUIS COUNTY
STATE OF MISSOURI
MICHAEL R. NACK, individually and on behalf of all
others similarly-situated,
Plaintiff,

Cause No.
Division

V.
REED ELSEVIER, INC.,
Serve: CT Corporation System
120 South Central Ave.
Clayton, MO 63105
St. Louis County

SHERIFF
-

Defendant.

CLASS ACTION PETITION
Plaintiff, MICHAEL R. NACK ("Plaintiff '), brings this action on behalf of itself and all
others similarly situated, through its attorneys, and except as to those allegations pertaining to
Plaintiff or its attorneys, which allegations are based upon personal knowledge, alleges the
following upon information and belief against Defendant, REED ELSEVIER, INC.,
("Defendant"):

PRELIMINARY STATEMENT
1.

This case challenges Defendant's practice of sending unsolicited facsimiles.

2.

The federal Telephone Consumer Protection Act, 47 USC § 227 ("TCPA"),

prohibits a person or entity from sending or having an agent send fax advertisements without the

1

recipient's prior express invitation or permission ("junk faxes" or "unsolicited faxes"). The TCPA
provides a private right of action and provides statutory damages of $500 per violation.
3.

Unsolicited faxes damage their recipients. A junk fax recipient loses the use of its

fax machine, paper, and ink toner. An unsolicited fax wastes the recipient's valuable time that
would have been spent on something else. A junk fax interrupts the recipient's privacy.
Unsolicited faxes prevent fax machines from receiving authorized faxes, prevent their use for
authorized outgoing faxes, cause undue wear and tear on the recipients' fax machines, and require
additional labor to attempt to discern the source and purpose of the unsolicited message.
4.

On behalf of itself and all others similarly situated, Plaintiff brings this case as a

class action asserting claims against Defendant under the TCPA, the common law of conversion,
and the consumer protection statutes forbidding and compensating unfair business practices.
5.

Plaintiff seeks an award of statutory damages for each violation of the TCPA and a

declaration that defendant's conduct violated the TCPA.
JURISDICTION AND PARTIES
6.

This court has personal jurisdiction over Defendant because Defendant transacts

business within this state, have made contracts within this state, and/or have committed tortious
acts within this state and otherwise have sufficient minimum contacts with the State of Missouri.
7.

Federal jurisdiction does not exist because no federal question or claim is asserted

and Plaintiff s individual claims are worth less than $75,000.00, inclusive of all forms of damages
and fees. Plaintiff expressly disclaims any individual recovery in excess of $74,999.00, inclusive
of all forms of damages and fees.

2

8.

Plaintiff MICHAEL R. NACK, is an individual located in St. Louis County,

Missouri.
9.

Defendant, REED ELSEVIER, INC., is a corporation doing business in Missouri

and doing business as LexisNexis.
RELEVANT FACTS

10.

On December 4, 2008 Defendant sent 1 unsolicited facsimile to Plaintiff in St.

Louis County, Missouri. A true and correct copy of the facsimile is attached as Exhibit 1.
11.

Defendant approved, authorized and participated in the scheme to broadcast faxes

by (a) directing a list to be purchased or assembled; (b) directing and supervising employees or
third parties to send the faxes; (c) creating and approving the form of fax to be sent; and (d)
determining the number and frequency of the facsimile transmissions.
12.

Defendant created or made Exhibit 1, which Defendant distributed to Plaintiff and

the other members of the class.
13.

Exhibit 1 is a part of Defendant's work or operations to market Defendant's goods

or services which was performed by Defendant and/or on behalf of Defendant.
14.

Exhibit 1 constitutes material furnished in connection with defendant's work or

operations.
15.

Exhibit 1 hereto is material advertising the commercial availability of any property,

goods, or services.
16.

The transmission of Exhibit 1 to Plaintiff did not contain a notice that informs the

recipient of the ability and means to avoid future unsolicited facsimiles.

3

17.

The transmission of Exhibit 1 to Plaintiff did not contain a notice that states that the

recipient may make a request to the sender of the facsimiles not to send any future facsimiles to a
telephone facsimile machine or machines and that failure to comply, within 30 days, with such a
request meeting the requirements under paragraph 47 C.F.R. 64.1200(a)(3)(v) of this section is
unlawful.
18.

The transmission of Exhibit 1 to Plaintiff did not contain at the top or bottom of the

first page, the correct date and time it was sent and an identification of the entity sending the
message and the telephone number of the sending machine or of such entity.
19.

The transmission of Exhibit 1 to Plaintiff did not contain a notice that complied

with the provisions of 47 U.S.C. § 227(b)(1)(C) and/or 47 C.F.R. 64.1200(a)(3).
20.

The transmission of Exhibit 1 to Plaintiff was required to contain a notice that

complied with the provisions of 47 U.S.C. § 227(b)(1)(C) and/or 47 C.F.R. 64.1200(a)(3).
21.

Plaintiff had not invited or given permission to Defendant to send facsimiles.

22.

Plaintiff did not have an established business relationship with Defendant.

23.

On information and belief, Defendant sent multiple unsolicited facsimiles to

Plaintiff and members of the proposed classes throughout the time period covered by the class
definitions.
24.

On information and belief, Defendant faxed the same and similar facsimiles to the

members of the proposed classes in Missouri and throughout the United States without first
obtaining the recipients' prior express permission or invitation.

4

25.

There is no reasonable means for Plaintiff (or any other class member) to avoid

receiving unlawful faxes.

Fax machines are left on and ready to receive the urgent

communications their owners desire to receive.
26.

Defendant knew or should have known that: (a) Exhibit 1 was an advertisement;

(b) Defendant did not obtain prior permission or invitation to send Exhibit 1; (c) Defendant did not
have an established business relationship with Plaintiff or the other members of the class and (d)
Defendant did not display a proper opt out notice on Exhibit 1.
27.

Defendant engaged in the transmission of Exhibit 1 believing such transmissions

were legal based on Defendant's own understanding of the law and/or based on the representations
of others on which Defendant reasonably relied.
28.

Defendant did not intend to send transmission Exhibit 1 to any person where such

transmission was not authorized by law or by the recipient, and to the extent that any transmission
of Exhibit 1 were sent to any person and such transmission was not authorized by law or by the
recipient, such transmission was made based on either Defendant's own understanding of the law
and/or based on the representations of others on which Defendant reasonably relied.
29.

Defendant failed to correctly determine the legal restrictions on the use of facsimile

transmissions and the application of those restrictions to the transmission of Exhibit 1 both to
others in general, and specifically to Plaintiff.
30.

The transmission of Exhibit 1 to Plaintiff caused destruction of Plaintiffs property.

31.

The transmission of Exhibit 1 to Plaintiff interfered with Plaintiffs exclusive use of

Plaintiff s property.

5

32.

The transmission of Exhibit 1 to Plaintiff interfered with Plaintiffs business and/or

personal communications.

COUNT I
TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. 227
33.

Plaintiff incorporates the preceding paragraphs as though fully set forth herein.

34.

Plaintiff brings Count I pursuant to the Telephone Consumer Protection Act, 47

U.S.C. § 227, on behalf of the following class of persons:
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 any property, goods, or services by or on behalf of
Defendant (3) with respect to whom Defendant cannot provide evidence of
prior express peimission or invitation for the sending of such faxes, (4) with
whom Defendant does not have an established business relationship and (5)
which did not display a proper opt out notice.
35.

A class action is warranted because:
a.

On information and belief, the class includes more than forty persons and is

so numerous that joinder of all members is impracticable.
b.

There are questions of fact or law common to the class predominating over

questions affecting only individual class members, including without limitation:
i.

Whether Defendant engaged in a pattern of sending unsolicited fax

advertisements;
ii.

Whether Exhibit 1 contains material advertising the commercial

availability of any property, goods or services;

6

iii.

The manner and method Defendant used to compile or obtain the list

of fax numbers to which they sent Exhibit 1 and other unsolicited faxed
advertisements;
iv.

Whether Defendant faxed advertisements without first obtaining the

recipients' prior express permission or invitation;
v.

Whether Defendant violated the provisions of 47 USC § 227;

vi.

Whether Plaintiff and the other class members are entitled to

statutory damages;
vii.

Whether Exhibit 1 displayed each required element of the opt out

notice required by 64 C.F.R. 1200;
viii.

Whether Exhibit 1 displayed each required element of the date, time,

and identification required by 47 USC § 227;
ix.

Whether Defendant's acts were "knowing" as that term is used in 47

USC § 227;
x.

Whether Defendant should be enjoined from faxing advertisements

in the future; and
xi.
36.

Whether the Court should award trebled damages.

Plaintiff will fairly and adequately protect the interests of the other class members.

Plaintiff s counsel are experienced in handling class actions and claims involving unsolicited
advertising faxes. Neither Plaintiff nor Plaintiff s counsel has any interests adverse or in conflict
with the absent class members.

7

37.

A class action is the superior method for adjudicating this controversy fairly and

efficiently. The interest of each individual class member in controlling the prosecution of separate
claims is small and individual actions are not economically feasible.
38.

The TCPA prohibits the "use of any telephone facsimile machine, computer or

other device to send an unsolicited advertisement to a telephone facsimile machine...." 47 U.S.C.
§ 227(b)(l).
39.

The TCPA defines "unsolicited advertisement," as "any material advertising the

commercial availability or quality of any property, goods, or services which is transmitted to any
person without that person's express invitation or permission." 47 U.S.C. § 227(a)(4).
40.

The TCPA provides:
Private right of action. A person may, if otherwise permitted by the laws or
rules of court of a state, bring in an appropriate court of that state:
(A)
An action based on a violation of this subsection or the regulations
prescribed under this subsection to enjoin such violation,
(B)
An action to recover for actual monetary loss from such a violation,
or to receive $500 in damages for each such violation, whichever is greater,
Or

(C)
41.

Both such actions.

The Court, in its discretion, may treble the statutory damages if the violation was

knowing. 47 U.S.C. § 227.
42.

The TCPA is a strict liability statute and the Defendant is liable to Plaintiff and the

other class members even if its actions were only negligent.
43.

Defendant's actions caused damages to Plaintiff and the other class members.

Receiving Defendant's junk faxes caused the recipients to lose paper and toner consumed in the

8

printing of Defendant's faxes. Moreover, Defendant's actions interfered with Plaintiffs use of its
fax machine and telephone line connected to that fax machine. Defendant's faxes cost Plaintiff
time, as Plaintiff and its employees wasted their time receiving, reviewing and routing Defendant's
unlawful faxes. That time otherwise would have been spent on Plaintiff's business activities.
Finally, Defendant's faxes unlawfully interrupted Plaintiff s and the other class members' privacy
interests in being left alone.
44.

Defendant did not intend to cause damage to Plaintiff and the other class members,

did not intend to violate their privacy, and did not intend to interfere with recipients' fax machines
or consume the recipients' valuable time with Defendant's advertisements.
45.

If the court finds that Defendant knowingly violated this subsection or the

regulations prescribed under this subsection, the court may, in its discretion, increase the amount
of the award to an amount equal to not more than three times the amount available under
subparagraph (B) of this paragraph. 47 U.S.C. § 227(b)(3).
46.

Defendant knew or should have known that: (A) Plaintiff and the other class

members had not given express permission or invitation for Defendant or anyone else to fax
advertisements about Defendant's goods or services, (B) Defendant did not have an established
business relationship with Plaintiff and the other members of the class, (C) Exhibit 1 was an
advertisement, and (D) Exhibit 1 did not display the proper opt out notice.
47.

Defendant violated 47 U.S.C. § 227 et seq. by transmitting Exhibit 1 hereto to

Plaintiff and the other members of the class without obtaining their prior express permission or
invitation and not displaying the proper opt out notice required by 64 C.F.R. 1200.

9

48.

Defendant's actions caused damages to Plaintiff and the other class members,

because their receipt of Defendant's unsolicited fax advertisements caused them to lose paper and
toner consumed as a result. Defendant's actions prevented Plaintiff s fax machine from being used
for Plaintiff s business purposes during the time Defendant were using Plaintiff s fax machine for
Defendant's unauthorized purpose. Defendant's actions also cost Plaintiff employee time, as
Plaintiff s employees used their time receiving, routing and reviewing Defendant's unauthorized
faxes and that time otherwise would have been spent on Plaintiff s business activities. Finally, the
injury and property damage sustained by Plaintiff and the other members of the class occurred
outside of Defendant's premises. Pursuant to law, Plaintiff, and each class member, instead may
recover $500 for each violation of the TCPA.
WHEREFORE, Plaintiff, MICHAEL R. NACK, individually and on behalf of all others
similarly situated, demands judgment in its favor and against Defendant, REED ELSEVIER, INC.,
as follows:
A.

That the Court adjudge and decree that the present case may be properly maintained
as a class action, appoint Plaintiff as the representative of the class, and appoint
Plaintiff s counsel as counsel for the class;

B.

That the Court award between $500.00 and $1,500.00 in damages for each and
every violation of the TCPA;

C.

That the Court enter an injunction prohibiting the Defendant from engaging in the
statutory violations at issue in this action;

D.

That the Court declare that Defendant's conduct violated the TCPA and that this
action is just and proper;

10

E.

That the Court award costs and such further relief as the Court may deem just and
proper;

F

That the Court award pre-judgment and post-judgment interest at the statutory rate
of 9%; and

G.

That the Court award plaintiff its attorney fees and all expenses incurred in
preparing and prosecuting this claim.

COUNT II
CONVERSION
49.

Plaintiff incorporates Paragraphs 3 and 4, and 11 — 15, 21-25, and27 — 32 as for its

paragraph 49.
50.

In accordance with Mo. S. Ct. Rule 52.08, Plaintiff brings Count II for conversion

under the common law for the following class of persons:
All persons who on or after five years prior to the filing of this action, were
sent telephone facsimile messages by or on behalf of Defendant with respect
to whom Defendant cannot provide evidence of prior express permission or
invitation.
51.

A class action is proper in that:
a.

On information and belief the class is so numerous that joinder of all

members is impracticable.
b.

There are questions of fact or law common to the class predominating over

all questions affecting only individual class members, including:
i.

Whether Defendant engaged in a pattern of sending unsolicited

faxes;

11

ii.

Whether Defendant sent faxes without obtaining the recipients' prior

express permission or invitation of the faxes;
iii.

The manner and method Defendant used to compile or obtain the list

of fax numbers to which it sent Exhibit 1 and other unsolicited faxes;
iv.

Whether Defendant committed the tort of conversion; and

v.

Whether Plaintiff and the other class members are entitled to recover

actual damages and other appropriate relief.
52.

Plaintiff will fairly and adequately protect the interests of the other class members.

Plaintiff has retained counsel who is experienced in handling class actions and claims involving
unlawful business practices. Neither Plaintiff nor Plaintiff's counsel have any interests adverse or
in conflict with the class.
53.

A class action is the superior method for adjudicating this controversy fairly and

efficiently. The interest of the individual class members in individually controlling the prosecution
of separate claims is small and individual actions are not economically feasible.
54.

By sending Plaintiff and the other class members unsolicited faxes, Defendant

improperly and unlawfully converted their fax machines, toner and paper to its own use.
Defendant also converted Plaintiff's employees' time to Defendant's own use.
55.

Immediately prior to the sending of the unsolicited faxes, Plaintiff, and the other

class members owned an unqualified and immediate right to possession of their fax machine,
paper, toner, and employee time.

12

56.

By sending the unsolicited faxes, Defendant permanently misappropriated the class

members' fax macliines, toner, paper, and employee time to Defendant's own use. Such
misappropriation was wrongful and without authorization.
57.

Defendant knew or should have known that its misappropriation of paper, toner,

and employee time was wrongful and without authorization.
58.

Plaintiff and the other class members were deprived of the use of the fax machines,

paper, toner, and employee time, which could no longer be used for any other purpose. Plaintiff
and each class member thereby suffered damages as a result of the sending of unsolicited faxes
from Defendant.
59.

Each of Defendant's unsolicited faxes effectively stole Plaintiff's employees' time

because persons employed by Plaintiff were involved in receiving, routing, and reviewing
Defendant's unlawful faxes. Defendant knew or should have known employees' time is valuable
to Plaintiff.
60.

Defendant's actions caused damages to Plaintiff and the other members of the class

because their receipt of Defendant's unsolicited faxes caused them to lose paper and toner as a
result. Defendant's actions prevented Plaintiff's fax machines from being used for Plaintiff's
business purposes during the time Defendant was using Plaintiff s fax machines for Defendant's
unlawful purpose. Defendant's actions also cost Plaintiff employee time, as Plaintiff s employees
used their time receiving, routing, and reviewing Defendant's unlawful faxes, and that time
otherwise would have been spent on Plaintiff s business activities.

13

WHEREFORE, Plaintiff, MICHAEL R. NACK, individually and on behalf of all others
similarly situated, demands judgment in its favor and against Defendant, REED ELSEVIER, INIC.,
as follows:
A.

That the Court adjudge and decree that the present case may be properly maintained
as a class action, appoint Plaintiff as the representative of the class, and appoint
Plaintiff s counsel as counsel for the class;

B.

That the Court award fair and reasonable damages to Plaintiff and the Class;

C.

That the Court award costs of suit to Plaintiff and the Class;

D.

That the Court award plaintiff its attorney fees and all expenses incurred in
preparing and prosecuting this claim; and

E.

Awarding such further relief as the Court may deem just and proper.

COUNT III
MISSOURI CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT
Chapter 407
61.

Plaintiff incorporates Paragraphs 3 and 4, and 11 — 15, 21-25, and27 — 32 as for its

paragraph 61.
62.

In accordance with Chapter 407, Plaintiff, on behalf of the following class of

persons, bring Count III for Defendant's unfair practice of sending unsolicited and unlawful fax
advertisements:
All persons who on or after four years prior to the filing of this action, were
sent telephone facsimile messages by or on behalf of Defendant with respect
to whom Defendant cannot provide evidence of prior express permission or
invitation.

14

65.

A class action is an appropriate method for adjudicating this controversy fairly and

efficiently. The interest of the individual class members in individually controlling the prosecution
of separate claims is small and individual actions are not economically feasible.
66.

Defendant's unsolicited fax practice is an unfair practice, because it violates public

policy, and because it forced Plaintiff and the other class members to incur expense without any
consideration in return. Defendant's practice effectively forced Plaintiff and the other class
members to pay for Defendant's advertising campaign.
67.

Defendant violated the unfairness predicate of the Act by engaging in an

unscrupulous business practice and by violating Missouri public policy, which public policy
violations in the aggregate caused substantial injury to hundreds of persons.
68.

Defendant's misconduct caused damages to Plaintiff and the other members of the

class, including the loss of paper, toner, ink, use of their facsimile machines, and use of their
employees' time.
69.

Defendant's actions caused damages to Plaintiff and the other class members

because their receipt of Defendant's unsolicited faxes caused them to lose paper and toner
consumed as a result. Defendant's actions prevented Plaintiff s fax machine from being used for
Plaintiff s business purposes during the time Defendant was using Plaintiffs fax machine for
Defendant's unlawful purpose. Defendant's actions also cost Plaintiff employee time, as
Plaintiff s employees used their time receiving, routing, and reviewing Defendant's unlawful faxes
and that time otherwise would have been spent on Plaintiff s business activities.

16

PRAYER
WHEREFORE, Plaintiff, MICHAEL R. NACK, individually and on behalf of all others
similarly situated, demand judgment in its favor and against Defendant, REED ELSEVIER, INC.,
as follows:
A.

That the Court adjudge and decree that the present case may be properly maintained
as a class action for Count I, Count II and Count III, appoint Plaintiff as the class
representative, and appoint Plaintiff s counsel as counsel for the class;

B.

That the Court award damages to Plaintiff and the other class members;

C.

That the Court award treble damages to Plaintiff and the other class members for
knowing violations of the TCPA;

D.

That the Court declare that Defendant's conduct violated the TCPA and that this
action is just and proper;

E.

That the Court award damages for conversion of the plaintiffs and the class for
violation of their rights;

F.

That the Court award damages and attorney fees for violation of Chapter 407;

G.

That the Court award attorney fees and costs;

H.

That the Court award all expenses incurred in preparing and prosecuting these
claims;

I.

That the Court enter an injunction prohibiting Defendant from sending faxed
advertisements; and

J.

Awarding such further relief as the Court may deem just and proper.

17

Respectfully submitted,
ete,

Max G. Margulis, #24325
MARGULIS LAW GROUP
28 Old Belle Monte Rd.
Chesterfield, MO 63017
P: [phone]
F: [phone]
E-Mail: [e-mail]
Attorneys for Plaintiff

Of Counsel
Brian J. Wanca
ANDERSON + WANCA
3701 Algonquin Road, Suite 760
Rolling Meadows, IL 60008
Phone: [phone]
Fax: [phone]
E-Mail: [e-mail]
Phillip A. Bock #6224502
Bock & Hatch, LLC
134 North LaSalle
Chicago, IL 60602
P: [phone]
F: [phone]
Email: [e-mail]

To; Midiael R.

Page 1 of 1 4:43:52 PM, 1214/2008 937-865-8813 LexisNexis

467. Nack,N1‘,
December 4, 2008

LexisNexis
To! Michael R. Nack
Neck. Michael R.

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