Siding and Insulation Co. v. Alco Vending, Inc.

Filing 133

Memorandum Opinion: The Court finds that defendant has failed to establish that it is entitled to judgment as a matter of law and that plaintiff has failed to satisfy its burden of establishing that this case is suitable for treatment as a class action. Therefore, plaintiff's second motion for class certification (Doc. No. 113 ) and defendant's second motion for summary judgment (Doc. No. 120 ) are denied. Judge Sara Lioi on 8/25/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE SIDING AND INSULATION CO.,

PLAINTIFF,
vs.
ALCO VENDING, INC.,

DEFENDANT.

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CASE NO. 1:11-cv-1060

JUDGE SARA LIOI

MEMORANDUM OPINION

Arising under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
227(b)(1)(C), this junk fax case is before the Court on two motions: (1) the second motion of
plaintiff Siding and Insulation Co. (“plaintiff” or “Siding”) for class certification (Doc. No. 113
[“Mot. Class”]), and (2) the second motion of defendant Alco Vending, Inc. (“defendant” or
“Alco”) for summary judgment. (Doc. No. 120 [“MSJ”].) Defendant opposes plaintiff’s request
for class certification (Doc. No. 118 [“Mot. Class Opp’n”]), and plaintiff has filed a reply. (Doc.
No. 121 [“Mot. Class Reply”].) Plaintiff, in turn, opposes defendant’s summary judgment motion
(Doc. No. 124 [“MSJ Opp’n”]), and defendant has replied. (Doc. No. 125 [“MSJ Reply”].) On
June 23, 2017, the Court held a hearing on these motions.1 For the reasons that follow,
defendant’s second summary judgment motion and plaintiff’s second motion to certify the class
are both denied.
1

At the conclusion of the hearing, the Court took the matters under advisement and permitted the parties to file
supplemental briefs (Doc. No. 129 [“P. Suppl.”]); Doc. No. 130 [“D. Suppl.”]) and supplemental response briefs
(Doc. No. 131 [“D. Suppl. Resp.”]; Doc. No. 132 [“P. Suppl. Resp.”]) on the issue of the statute of limitations
relative to plaintiff’s request for certification of the proposed class.

I. BACKGROUND
This case is one of a string of lawsuits filed in connection with the activities of a
company known as Business to Business Solutions (“B2B”), an entity run by Caroline Abraham
out of her home in New York and in concert with a Romanian company known as Macaw
(where appropriate, collectively referred to as “B2B/Macaw”), which sold fax advertising
services to companies in the United States. “B2B purchased a list of fax numbers from a
company called InfoUSA, Inc. For a fee, B2B faxed clients’ advertisements to hundreds of
numbers from that list, a practice known as ‘fax-blasting.’” Bridging Communities Inc. v. Top
Flite Fin. Inc., 843 F.3d 1119, 1122 (6th Cir. 2016) (quotation marks and internal citations
omitted). To date, the activities of B2B and Macaw have sparked over 100 lawsuits.2
Compressor Eng’g Corp. v. Thomas, 319 F.R.D. 511, 517 (E.D. Mich. 2016) (quotation marks
and citation omitted).
Alco, the defendant is this particular case, is in the business of placing and stocking
vending machines for its customers. (Doc. No. 120-1 (2010 Deposition of Richard Gajdos
[“Gajdos Dep. I”]) at 7-83.) At all times relevant to the present litigation, Richard Gajdos was the
president of Alco and owned 100% of its stock. (Id. at 7, 11.) Sometime in 2005, Gajdos

2

A number of decisions have recounted the sordid details surrounding the allegedly fraudulent activities of these
two companies. See, e.g., id. at 516-17 (citation omitted); Avio, Inc. v. Alfoccino, Inc., 311 F.R.D. 434, 437-38 (E.D.
Mich. 2015) (quoting APB, Inc. v. Bronco’s Saloon, Inc., 297 F.R.D. 302, 304-06 (E.D. Mich. 2013)); see also
Bridging Communities., 843 F.3d at 1122. This Court will not re-trod over such well-traveled ground, other than to
comment that, in light of her fax-blasting activities, prior courts have referred to Abraham as “a modern-day
‘typhoid mary[.]’” Bridging Communities, 843 F.3d at 1122 (quoting Avio, 311 F.R.D. at 434) (further quotation
marks and citation omitted).
3

All page number references to depositions are to the page numbers generated by the transcribing court reporter. All
other page number references are to the page identification number generated by the Court’s electronic docketing
system.
2

received one or more unsolicited faxes from B2B offering to send faxes on behalf of Alco
advertising its vending machine services. (Gajdos Dep. 1 at 19-20; Doc. No. 120-2 (2016
Deposition of Richard Gajdos [“Gajdos Dep. II”]) at 9-10, 21.) Gajdos contacted B2B and spoke
with someone who referred to himself as Kevin Wilson.4 Wilson explained that B2B had a list of
businesses in Alco’s area (and with the same area code) that would receive the fax
advertisements. He represented that B2B could send faxes to these business “with no problem
to” Gajdos. (Gajdos Dep. II at 10, 13.) Wilson sent Gajdos several sample advertisements.
Gajdos settled on one particular advertisement, after offering his input on certain content details.
(Id. at 10-11, 18-19; Gajdos Dep. I at 22.)
During the course of their negotiations, Wilson made several representations to Gajdos
regarding the nature of the advertising services offered by B2B. He assured Gajdos that B2B
already had communicated with the businesses on the recipient list, and that B2B had a right to
send them a fax because it “had a business relationship with them.” (Gajdos Dep. I at 23-24; see
Gajdos Dep. II at 24.) Wilson also volunteered that the faxes were “100 percent legal,”
reiterating that B2B “had a full and open relationship with” each of the proposed recipients.
(Gajdos Dep. I at 25-26; Gajdos Dep. II at 13, 20-21.)5 B2B/Macaw controlled the list of
recipients, though Gajdos admitted that he never asked to see the list and believed it did not
contain any of Alco’s clients. (Gajdos Dep. I at 23-24; Gajdos Dep. II at 24-25, 44-45; Doc. No.
120-6 (Deposition of Caroline Abraham [“Abraham Dep.”]) at 95-97, 100-01.)

4

It is undisputed that “Kevin Wilson” was an alias.

Gajdos testified that, prior to Wilson’s representation that the faxes were “100 percent legal,” he had no concerns
regarding the legality of the proposed advertisement. He explained “I received faxes on my fax machine every day
from everybody, so I didn’t think there was anything wrong with it. And then [Wilson] offered that, that it was 100
percent legal because they were sending it to all of their clients, so I said, Okay, fine.” (Gajdos Dep. II at 21.)
3
5

Gajdos ultimately authorized B2B to transmit the advertisement and paid for this service
by faxing a check for $188 to B2B. (Gajdos Dep. I at 11.) Following payment, the initial round
of faxes was sent in November 2005 by Macaw working with B2B.
After this first wave of faxes went out, Gajdos received “a couple” of complaints from
attorneys representing recipients who did not consent to receiving the faxes. Some of the
attorney letters threatened litigation. Gajdos did not read the letters or complaints, but directed
his staff to “refer the complaint[s] right to Mr. Wilson . . . it was [B2B’s] job[.]” (Gajdos Dep. II
at 48.) For his part, Wilson assured Gajdos “he would have [the complaining businesses] taken
off the list. He said he would take care of it.” (Gajdos Dep. at 32, 56.) Gajdos ultimately
authorized and paid B2B to send a second wave of fax advertisements that were transmitted in
July 2006. Between the two attempts, Macaw successfully sent 7,055 transmissions to 4,547
unique fax numbers. (Doc. No. 113-4 (Expert Report of Robert Biggerstaff [“Biggerstaff Ex.
Rpt.”]) ¶ 21.)
Plaintiff was one of the businesses to receive one or more of the faxes sent by
B2B/Macaw advertising the services of Alco. On May 24, 2011, plaintiff brought the present
action alleging that, by authorizing the faxes, Alco violated the TCPA inasmuch as plaintiff did
not invite or give permission to Alco to send the faxes. (Doc. No. 1 (Complaint [“Compl.”]) ¶
13.) Plaintiff moved for certification of the class of all those who received the allegedly
offending faxes, and defendant moved for summary judgment. The motions were referred to the
magistrate judge who issued a report and recommendation that summary judgment be granted to
defendant and the class certification motion be denied as moot. The Court adopted the R&R and
dismissed the action.
4

On appeal, the Sixth Circuit reversed. In so ruling, the court found that the magistrate
judge and the district court had applied the wrong standard when evaluating Alco’s conduct
under the TCPA. Because the faxes were sent between November 2005 and July 2006, the court
determined that the “on-whose-behalf” standard governed. Siding & Insulation Co. v. Alco
Vending, Inc., 822 F.3d 886, 898 (6th Cir. 2016). The court explained that, pursuant to this
standard, a plaintiff alleging a violation of the TCPA, 47 U.S.C. § 227(b)(1)(C), “must do more
than simply show that the defendant’s goods or services were advertised in the offending fax, but
need not establish a complete agency relationship between the defendant and the fax
broadcaster.” Id. (citing Cin-Q Auto., Inc. v. Buccaneers Ltd. P’ship, No. 8:13-cv-01592-AEP,
2014 WL 7224943, at *1 (M.D. Fla. Dec. 17, 2014) (explaining that the standard is “more
forgiving than a blanket application of per se liability but somewhat more stringent than
vicarious liability through common law agency[]”)).
The Sixth Circuit further identified a number of factors that guide a court’s consideration
of whether a fax broadcaster had sent the transmission “on behalf of” another entity. Id. at 89899. Applying these factors to the record in this case, the court observed that some of the factors
indicate that “B2B did not act on Alco’s behalf[,]” while others “tend to support the conclusion
that B2B did in fact act on Alco’s behalf.” Id. at 899-901. The court remanded the matter to the
district court “to apply the correct legal standard.” Id. at 901. The Sixth Circuit noted that, on
remand, the district court could allow further discovery and permit any such “further proceedings
as it determines is [sic] necessary to effectuate the standard described above.” Id. It also directed
the district court to “reconsider whether, after conducting such proceedings, Siding’s motion for
class certification remains moot.” Id.
5

The case was reassigned to the undersigned pursuant to General Order 2015-12, due to
the original judge’s retirement. At the request of counsel, the Court permitted the parties to
conduct limited discovery before re-briefing plaintiff’s request for class certification. (Minutes,
dated 6/28/16.) Following this period of discovery, the parties filed the previously mentioned
pending motions.
II. DEFENDANT’S SECOND SUMMARY JUDGMENT MOTION
A.

Standard of Review

Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly made and
supported, it shall be granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
An opposing party may not rely on allegations or denials in its own pleading; rather, by
affidavits or by materials in the record, the opposing party must set out specific facts showing a
genuine issue for trial. Fed. R. Civ. P. 56(c)(1). Affidavits or declarations filed in support of or in
opposition to a motion for summary judgment “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A movant is not required to file affidavits
or other similar materials negating a claim on which its opponent bears the burden of proof, so
long as the movant relies upon the absence of the essential element in the pleadings, depositions,
answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In reviewing summary judgment motions, the Court must view the evidence in a light
most favorable to the non-moving party to determine whether a genuine issue of material fact
6

exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970);
White v. Turfway Park Racing Ass’n, 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled
on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d
190 (1991). A fact is “material” only if its resolution will affect the outcome of the lawsuit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Determination of whether a factual issue is “genuine” requires consideration of the applicable
evidentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors
could find by a preponderance of the evidence that the [non-moving party] is entitled to a
verdict[.]” Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a
showing sufficient to establish the existence of an element essential to that party’s case and on
which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, “[t]he
trial court no longer has the duty to search the entire record to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The nonmoving party is under an affirmative duty to point out specific facts in the record as it has been
established that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp.
1, 4 (S.D. Ohio 1992) (citation omitted). The non-movant must show more than a scintilla of
evidence to overcome summary judgment; it is not enough for the non-moving party to show that
there is some metaphysical doubt as to material facts. Id. (citation omitted).

7

B.

Governing Law Under the TCPA

The TCPA makes it unlawful “to use any telephone facsimile machine, computer, or
other device to send, to a telephone facsimile machine, an unsolicited advertisement,” unless
certain facts exist. TCPA, 47 U.S.C. § 227(b)(1)(C).6 An unsolicited advertisement is defined in
the TCPA 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 prior express
invitation or permission, in writing or otherwise.’” Palm Beach Golf Center-Boca, Inc. v. Sarris,
212 F. Supp. 3d 1286, 1291 (S.D. Fla. 2016) (quoting 47 U.S.C. § 227(a)(5)). However, the
TCPA is silent as to who qualifies as a “sender” of junk faxes. Recognizing this ambiguity, the
Federal Communications Commission (“FCC”) issued an order in 1995, clarifying that “the
entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance
with the rule banning unsolicited facsimile advertisements[.]” In re Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 10 FCC Rcd. 12391, 12407 (1995).
As the Sixth Circuit explained in its decision remanding the present case, “[t]o decide
whether one entity (such as B2B in this case) broadcast a potentially unauthorized fax ‘on behalf
of’ another entity (such as Alco in this case), courts have considered a variety of factors. These
factors include the degree of control that the latter entity exercised over the preparation of the
faxes, whether the latter entity approved the final content of the faxes as broadcast, and the
nature and terms of the contractual relationship between the fax broadcaster and the latter

6

The statute provides a private right of action for injunctive relief and for damages equal to the actual monetary loss
or $500 for each violation. § 227(b)(3). The amount of the award may be tripled if the Court finds that the violation
was willful or knowing. Id.
8

entity.” Siding, 822 F.3d at 898-99 (citation omitted). The court went on to note that “[o]ne court
has summarized the ‘on-whose-behalf’ inquiry as follows:
Circumstances to be considered include, but are not limited to, the degree of input
and control over the content of the fax(ex), the actual content of the fax(es),
contractual or expressly stated limitations and scope of control between the
parties, privity of the parties involved, approval of the final draft of the fax(es)
and its transmission(s), method and structure of payment, overall awareness of the
circumstances (including access to and control over facsimile lists and
transmission information), and the existence of measures taken to ensure
compliance and/or to cure non-compliance with the TCPA.
Id. at 899 (quoting Cin-Q Auto, 2014 WL 7224943, at *7).7 The Sixth Circuit explained that
courts applying the “on-whose-behalf” standard do not apply it “with a layperson’s
understanding of what that phrase might mean; instead, they treat the phrase ‘on whose behalf’
as a term of art that should be interpreted in a way that seeks to hold liable the entity ultimately
at fault in causing a TCPA violation.” Id.
As set forth above, employing the factors identified in its decision of remand, the Sixth
Circuit noted that several factors favored a finding that the faxes were not set on behalf of Alco.
Specifically, the court found that the factors favoring a finding that B2B did not act on behalf of
Alco included that Gajdos had no or limited access to and control over the fax list; that when
Gajdos received complaints he contacted Wilson who promised to take care of it; assurances
made by B2B to Gajdos that B2B had a full and open relationship with each entity on the list;
that a “factfinder could conclude that Alco reasonably relied on these representations in deciding

Cin-Q Auto made clear that the inquiry requires a “totality” review of the relevant factors. Cin-Q Auto, 2014 WL
7224943, at *7 (citation omitted); see, e.g., Sarris, 212 F. Supp. 3d at 1299 (“The appropriate standard for
determining whether a fax was sent on a defendant’s behalf ‘requires a totality-of-circumstances review, which
incorporates the Sarris factors”).
7

9

to enter an advertising arrangement with B2B that Alco believed would not violate the TCPA or
any other laws[]”; and that the faxes themselves indicated that the message was the property and
sole responsibility of B2B. Siding, 822 F.3d at 900. The court noted that these last
representations “could be viewed by a factfinder as tending to show that Alco lacked any
significant input and control over the content of the fax(es)[.]” Id. (citation omitted).
Of course, the Sixth Circuit also found that some factors tended to favor a finding that
B2B did act on behalf of Alco. The court highlighted the fact that Gajdos admitted Alco obtained
clients as a result of the faxes, though the court warned that Gajdos’ admission, as a lay person,
was not an endorsement that the “on-whose-behalf” standard had been met. The court also found
significant the fact that Gajdos provided B2B information about Alco to craft the ad, showing
some control. Additionally, the court observed that the faxes clearly promoted Alco’s services.
Id. at 900-01.
Finally, the Sixth Circuit instructed that on remand the district court and/or the jury “may
take into account the reasonableness of Alco’s reliance on B2B’s representations that B2B would
be solely responsible for the contents of the advertisements and that the faxes would be sent only
to businesses that had previously consented to receive fax advertisements from B2B. . . . Alco’s
efforts to determine whether it was dealing with a reputable company or with a fly-by-night
outfit is therefore a relevant factor for the court or a jury to consider.” Id. at 901.
C.

Discussion

Alco, recognizing that the Sixth Circuit underscored the fact that the term “on whose
behalf” is a term of art designed to impose liability on the entity responsible for the TCPA
violation, argues that “[a]s between B2B/Macaw and Alco, there is no contest: B2B/Macaw is
10

the source and the party at fault for this violation.” (MSJ at 4133.) However, the standard does
not seek to identify the guiltier party. Under the TCPA, “the sender and fax broadcaster may be
held jointly and severally liable[.]” In re Rules & Regulations Implementing the Tel. Consumer
Prot. Act of 1991 (Junk Fax Prevention Act of 2005), 21 FCC Rcd. 3787, 3808 (2006). In fact,
under the TCPA, it is the advertiser who is presumptively liable, and the broadcaster is only
jointly liable where it has a “high degree of involvement” in the unlawful activity. Id. While the
Court certainly considers B2B/Macaw’s role in the alleged violations, it must determine whether
Alco is liable regardless of whether B2B/Macaw is too.
On that note, Alco posits that it was fraudulently induced by B2B/Macaw to purchase
their fax advertising services, and that B2B/Macaw made an “independent decision” to send the
faxes to entities that it knew had never provided consent to receive such transmissions. (MSJ at
4120.) According to Alco, this action renders B2B/Macaw “‘ultimately responsible’ for the
violations of the [TCPA]” alleged by plaintiff. (Id.) Applying the factors identified in cases like
Cin-Q Auto and the Sixth Circuit’s decision in this case, defendant insists that it is entitled to
judgment as a matter of law.
The focal point of Alco’s motion is its repeated representation that Wilson promised that
B2B/Macaw would only send faxes to entities that had consented to receive them. (MSJ at 4122
[“B2B/Macaw repeatedly provided Alco with written assurance it would only send faxes to
persons who had consented.”]; id. at 4132 [“B2B/Macaw promised to provide Alco with the
legal service of sending advertising faxes to persons who had consented.”], emphasis in original.)
Alco goes so far as to state that “[i]t is also undisputed that Alco explicitly instructed
B2B/Macaw to limit the faxing only to persons who had consented to receive fax
11

advertisements.” (Id. at 4120, all emphasis in original.) Defendant misrepresents the testimony in
the record.
In his 2010 deposition, Gajdos testified Wilson told him that B2B “had a list of
businesses that they would send the fax to” and that “they already had communications with, that
they had the right to send them a fax. They already had a business relationship with them.”
(Gajdos Dep. I at 21-24.) He further testified that Wilson assured him that B2B “had their
authorization to send a fax[,]” that B2B had “a full and open relationship with all of the faxes
they were sending out[,]” and that its services were “100 percent legal[.]” (Id. at 25-26, 34.) In
his 2016 deposition, Gajdos reiterated that he was told that B2B had a relationship with the
intended fax recipients, and that he gave B2B the “right to send that fax out, the one I chose, to
their list of clients that they . . . told me they could send it to.” (Gajdos Dep. II at 11.)
From these exchanges, several observations can be made. First, they do not demonstrate,
as defendant suggests, that Gajdos “explicitly instructed” B2B to only send faxes to people who
consented. There is nothing in the record to suggest that Gajdos gave Wilson any limiting
instructions regarding the intended recipients of the faxes. In cases relied upon by Alco where
courts have found an advertiser blameless for faxes sent by B2B, the advertiser gave explicit,
unequivocal instructions as to whom and where the faxes should be sent. See, e.g., Sarris, 212 F.
Supp. 3d at 1293 (advertiser told B2B to limit the faxes to certain zip codes and to exclude
dentists); Bridgeview Health Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2014 WL 7717584, at *2
(N.D. Ill Nov. 21, 2014) (advertiser instructed that only 100 faxes to certain numbers in Terre
Haute, Indiana would be sent but B2B sent thousands as far away as Cleveland, Ohio). Because
the TCPA offending faxes would not have been sent but for the broadcaster’s unilateral decision
12

to disregard the advertiser’s clear instructions, the advertiser in these cases was not liable for the
resulting violations.
Of course, Alco also insists that, had B2B kept its promise to only send faxes to people
who had consented, the violations would not have occurred, and this brings the Court to its
second observation—the record stops short of establishing, as a matter of law, that B2B
promised that it would only send faxes to those who had given a “prior express invitation or
permission” to send the fax. TCPA, 47 U.S.C. § 227(a)(5). Instead, Gajdos testified that he was
told, at various times, that B2B had a full and open relationship with the recipients, that they had
the right to send the faxes, and that it was “100 percent legal.”
The question becomes whether Alco could reasonably rely on the representations B2B
did make. See Siding, 822 F.3d at 900. The Court finds the analysis in Cin-Q Auto helpful and
persuasive as to this inquiry. Faced with somewhat similar facts, the district court determined
that questions of material fact precluded summary judgment on the question of “on-whosebehalf” the offending faxes were sent. There, the defendant employed the services of FaxQom to
send faxes advertising the sale of defendant’s sporting tickets. During the negotiations, FaxQom
made several assurances to defendant: (1) it represented that the fax list contained 100% opt-in
numbers; (2) it only used “legal techniques”; and (3) it would abide by all laws associated with
facsimile marketing. It also promised to indemnify defendant. Cin-Q Auto, 2014 WL 7224943, at
*8. After the first set of faxes was sent out, defendant received complaints from individuals
asking to be taken off the list. Notwithstanding the complaints, defendant approved a second
wave, which was met with additional complaints. The defendant even went so far as to approve a
third wave of transmission.
13

The court found that some factors favored each side. Specifically, the court observed
defendant had some control over the content, which displayed images and messages that were
commercially advantageous to defendant, though it emphasized that defendant had no access to
the list. In finding questions of fact precluding summary judgment, the court reasoned that the
“privity of the parties involved in the broadcasts appears to be, as [defendant] argues, a tortured
path of lies and deceit. A reasonable jury could conclude that [defendant] relied on reasonable
assurances by FoxQom[.]” Id. (record citation omitted). However, the court also noted that
“evidence in the record could also support the proposition that [defendant] ratified what it knew
to be offending conduct—deciding to turn a blind eye and accept the collateral damage created
by its agent’s actions, all while hiding behind a promise of indemnity.” Id. at *9 (footnote
omitted).
Similarly here, a reasonable juror could find that Alco reasonably relied on promises of
authorization based on established relationships and a guarantee of complete legality. However, a
trier of fact could also find that Alco ratified B2B/Macaw’s allegedly illegal conduct by not
heeding (or even reading) the warnings of illegality in the complaint letters and blindly passing
them on for someone else to deal with, all the while continuing to utilize B2B/Macaw’s services
without concern for the legality of the services it offered.
At the hearing on the motion, plaintiff’s counsel argued that Alco should not be able to
benefit from these assurances because the person to whom they were made—Gajdos—was
unaware of the existence of the TCPA and its requirements. Plaintiff offers no support for the
proposition that a layperson must be aware of and investigate the requirements of the TCPA in
order to rely on promises that the broadcaster will comply with any and all relevant laws.
14

Instead, the Court finds that the representations that were made and Alco’s overall awareness of
its duties under the law should be considered, along with the totality of the circumstances, to
decide liability. See generally Sarris, 212 F. Supp. 3d at 1299; Cin-Q Auto, 2014 WL 7224943,
at *7.
Though the parties have engaged in additional discovery and briefing since the Sixth
Circuit issued its order of remand, the facts surrounding the transmission of the faxes in 2015
and 2016 have not changed. It remains true that some of the relevant factors tend to favor a
finding that the faxes were not sent “on behalf of” Alco, as Alco had no control over or access to
the fax list and no right to approve the list prior to providing payment for the advertising. Alco
also received assurances that the services it was purchasing would conform to the law, and it
promptly sent the complaints it received to B2B/Macaw and received assurances that they would
be addressed. Some facts, however, still favor a finding of liability, as Gajdos contributed to and
approved the content of the advertisements which clearly promoted Alco’s services,8 and Gajdos
admitted that he knew at the time that none of the entities on the list were customers of Alco.
More to the point with respect to the present dispositive motion, there are unresolved
questions of fact associated with many of these factors, including whether measures taken by
Alco to ensure compliance were sufficient given the fact that Gajdos never read the complaints
and continued to employ the services of B2B after Alco was threatened with litigation. As
previously mentioned, the reasonableness of Alco’s reliance on B2B’s assurances of legality and
promises to only send to those who had consented to receive them also continues to be mired in
factual disputes. Notwithstanding the promises made by B2B, Gajdos concedes that he was not

8

In fact, Gajdos testified that he received customers from B2B/Macaw’s fax blasting efforts. (Gajdos Dep. I at 29.)
15

aware of the requirements (or even existence) of the TCPA, yet he was well aware that B2B had
sent unsolicited faxes in the past because that is precisely how he learned of the B2B’s
advertising services. These unresolved factual disputes preclude a finding that, as a matter of
law, the advertisements were not sent on Alco’s behalf and therefore, defendant’s motion for
summary judgment is denied.
III. PLAINTIFF’S SECOND CLASS CERTIFICATION MOTION
A.

Standard of Review

A plaintiff seeking class certification must “affirmatively demonstrate” compliance with
Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374
(2011). Plaintiff must “satisfy through evidentiary proof [each of the Rule 23(a) factors and] at
least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 133 S. Ct.
1426, 1432, 182 L. Ed. 2d 515 (2013). While class action certification does not go to the merits
of the litigation, a trial court is permitted to examine the underlying merits of the claim as part of
its rigorous analysis, but only to the extent necessary to determine whether the requirements of
the rule is satisfied. Dukes, 564 U.S. at 350-51 (citations omitted). Moreover, Rule 23 grants “no
license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn.
Ret. Plans & Tr. Funds, 568 U.S. 455, 466, 133 S. Ct. 1184, 185 L. Ed. 2d 308 (2013) (citation
omitted).
With respect to Rule 23(a), the plaintiff 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 claims or defenses of
the class; and (4) the representative parties will fairly and adequately protect the interests of the
16

class.” Fed. R.

Civ. P. 23(a). “The Rule’s four requirements—numerosity, commonality,

typicality, and adequate representation—effectively limit the class claims to those fairly
encompassed by the named plaintiff’s claims.” Dukes, 564 U.S. at 349 (quotation marks and
citations omitted) Plaintiff attempts to establish the appropriateness of certification under Rule
23(b)(3). Under this subsection, class certification will be appropriate where “the court finds 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); see In re Whirlpool Corp.
Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013).
This Court has “broad discretion” in deciding whether to certify a class within the
framework of Rule 23. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citations
omitted). In making this determination, a district court may consider “what type of evidence will
be presented by the parties.” Rodney v. Nw. Airlines, Inc., 146 F. App’x 783, 785 (6th Cir. 2005)
(citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740
(1982)).
B.

Discussion

At the outset, the Court observes that it is not venturing into uncharted waters as the Sixth
Circuit has recently issued several decisions addressing the certification of classes of litigants
who have received alleged unsolicited faxes originating from B2B/Macaw. See Bridging
Communities Inc. v. Top Flight Fin. Inc., 843 F.3d 119 (6th Cir. 2016) (reversing denial of class
certification); Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (reversing
summary judgment awarded to defendant and sending back for a class certification
17

determination); Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540 (6th Cir.
2014) (affirming grant of summary judgment awarded to a certified class). A fourth decision
involving the same InfoUSA list, though not implicating B2B or Macaw, also guides the Court’s
analysis. Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir.
2017) (affirming denial of class certification).
Plaintiff proposes certification of the following class:
All persons who were successfully sent one or more faxes on November 2, 2005
or July 10, 2006, from Alco Vending offering a “full line” of vending machines
and stating “Absolutely no charge to you to have us put in your vending
machines.”
(Mot. Class at 3181.)
Defendant does not seriously challenge three of the Rule 23(a) requirements—
numerosity, commonality, and typicality. Nonetheless, because it must employ a “rigorous
analysis” of all factors, the Court will address each factor, touching only briefly on the ones for
which there is little disagreement between the parties. See Gooch v. Life Inv’rs Ins. Co. of Am.,
672 F.3d 402, 417 (6th Cir. 2012) (quotation marks and citation omitted).
1.

Numerosity

Beginning with numerosity, Rule 23(a)(1) requires the proposed class to be so numerous
that joinder of all members would be impracticable. “Generally, the numerosity requirement is
fulfilled when the number of class members exceeds forty.” Phillips v. Phillip Morris Cos. Inc.,
298 F.R.D. 355, 362 (N.D. Ohio 2014) (citing Stewart v. Abraham, 275 F.3d 220, 226-27 (3d
Cir. 2001)). Here, the record evidence establishes that defendant’s advertisement was sent by fax
7,055 times to 4,547 persons. (Biggerstaff Ex. Rpt. ¶ 21 and Ex. 3-6.) Courts have consistently
found classes similar in size to the one proposed by plaintiff to be sufficiently numerous to make
18

joinder impracticable. See Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006)
(recognizing that “substantial numbers usually satisfy the numerosity requirement”) (internal
quotation marks omitted); see, e.g., Whirlpool, 722 F.3d at 852 (putative class numbering in the
“thousands” sufficient) (citation omitted).
2.

Commonality

It is well settled that “there need only be one question common to the class[,]” so long as
the resolution of that question “will advance the litigation.” Sprague v. Gen. Motors Corp., 133
F.3d 388, 397 (6th Cir. 1998) (en banc) (citation omitted). Additionally, “‘[c]lass relief is
peculiarly appropriate when the issues involved are common to the class as a whole and when
they turn on questions of law applicable in the same manner to each member of the class.’” Card
v. City of Cleveland, 270 F.R.D. 280, 293 (N.D. Ohio 2010) (quoting Falcon, supra.).
Class members must have either a question of law or fact in common—not necessarily
both. Fed. R. Civ. P. 23(a)(2). This test requires only some common questions; not a
predominance of common questions as required under Rule 23(b)(3). It is “qualitative rather than
quantitative, that is, there need be only a single issue common to all members of the class.” In re
Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996) (quoting 1 NEWBERG

ON

CLASS

ACTIONS, section 3:10 at 3-50 (3d ed. 1992)). Under this standard, even “one question common
to the class” can satisfy the commonality requirement under Rule 23(a). Sprague, 133 F.3d at
397.
As plaintiff notes, this case involves standardized conduct relating to the transmission of
the same fax(es) across the entire class. As such, there are common fact questions relating to
defendant’s fax campaign and common legal questions relative to the legality of the faxing
19

activity under the TCPA, such as: whether the fax is an “advertisement”; whether defendant
violated the TCPA by authorizing the fax without first obtaining express written permission;
whether defendant reasonably relied on the representations and assurances made by B2B;
whether defendant’s actions were “willful” or “knowing” under the TCPA and, if so, whether the
Court should award treble statutory damages; and whether injunctive relief is appropriate. These
common issues satisfy the Rule 23(a) commonality requirement.
3.

Typicality

“A claim is typical if ‘it arises from the same event or practice or course of conduct that
gives rise to the claims of other class members, and if his or her claims are based on the same
legal theory.’” Beattie v. CenturyTel Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quoting In re Am.
Med. Sys., 75 F.3d at 1082). Here, typicality is inherent in the class definition. Each class
member was subjected to the same conduct; namely, the targeting of a fax advertising campaign.
Each received the same fax, and each member’s claim is based on the same legal theory as
plaintiff’s. Accordingly, Rule 23(a)(3)’s typicality requirement is satisfied.
4.

Adequacy of Representation

Defendant focuses its first of two arguments on the fourth requirement—adequacy of
representation. “Adequate representation is essential to a class action because without it there can
be no preclusive effect of the judgment.” Elkins v. Am. Showa, Inc., 219 F.R.D. 414, 419 (S.D.
Ohio 2002) (citation omitted). To assess the adequacy of the representation, the Court must
consider whether the class representative will “fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a)(4). There are two prongs to this inquiry: “1) The representative must
have common interests with unnamed members of the class, and 2) it must appear that the
20

representatives will vigorously prosecute the interests of the class through qualified counsel.”
Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976) (citation omitted).
Relying on the arguments it raised in its summary judgment motion, defendant argues
that plaintiff is not an adequate class representative because it does not have a valid claim under
the TCPA. However, because there are questions of fact on that score, this argument cannot carry
the day. See Thomas, 319 F.R.D. at 524 (rejecting similar argument as a means to defeat
certification, noting that “‘district courts may not turn the class certification proceedings into a
dress rehearsal for the trial on the merits’”) (quoting In re Whirlpool, 722 F.3d at 851) (further
quotation marks and citation omitted).
The Court has no reason to otherwise question the adequacy of the class representative at
this juncture. Plaintiff falls within the class it hopes to represent, and there is every indication
that its principals and agents are willing and able to vigorously represent the interests of the
class. Additionally, the Court finds that class counsel is adequate. Current class counsel is clearly
qualified to litigate a class action of this nature, and this same counsel has already been certified
adequate in numerous other class actions cases involving the same fax broadcasters. Moreover,
they have been litigating TCPA claims since 2003 and have negotiated class-wide settlements in
many such cases. (See Doc. No. 113-12 (Firm/Attorney Resumes for Bock, Hatch, Lewis, &
Oppenheim, LLC); Doc. No. 113-13 (Firm/Attorney Resumes for Anderson + Wanca); Doc. No.
113-14 (Firm/Attorney Resumes for Climaco, Wilcox, Peca, Tarantino & Garofoli Co., L.P.A.).)
This factor is also satisfied.

21

5.

Rule 23(b)(3) Predominance and Superiority

Defendant’s second argument is that class certification should be denied “because of a
predominance of individualized evidence.” (Mot. Class Opp’n at 3914.) It claims that
“[i]ndividual issues regarding the timeliness of claims by class members with whom [d]efendant
has an established business relationship (EBR) cannot be decided on a class-wide basis.” (Id.)
According to defendant, “undisputed facts confirm that a number of the putative class members
were excluded from the class alleged in the earlier-filed action that [p]laintiff relies on for
tolling. Specifically, the class definitions alleged in the prior action expressly excluded persons
with whom [d]efendant had an established business relationship. As a result, their claims were
never tolled and are now time-barred.” (Id.) Relying on records disclosed during discovery,
defendant has identified at least 42 potential class members with whom Alco has a pre-existing
business relationship. (See id. (chart) at 3916-17.)
Defendant’s argument implicates Rule 23(b)(3). The predominance requirement is far
more exacting than the Rule 23(a) analysis, and requires a showing that common issues
predominate over individual ones. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624, 117
S. Ct. 2231, 138 L. Ed. 2d 689 (1997) (“predominance criterion is far more demanding”)
(citation omitted). “Rule 23(b)(3) requires a showing that questions common to the class
predominate, not that those questions will be answered, on the merits, in favor of the class.”
Amgen, 568 U.S. at 459 (emphasis in original). Common questions are those “that can be proved
through evidence common to the class.” In re Whirlpool Corp., 722 F.3d at 858 (citation
omitted). “That said, plaintiffs seeking class certification ‘need not prove that each element of a
22

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.”’”
Bridging Communities, 843 F.3d at 1124 (quoting In re Whirlpool Corp., 722 F.3d at 858,
quoting Amgen, 133 S. Ct. at 1196) (emphasis in original).
The federal four-year “catch-all” statute of limitations in 28 U.S.C. § 1658(a) applies to
claims under the TCPA. Giovanniello v. ALM Media, LLC, 726 F.3d 106, 115 (2d Cir. 2013).
The present action was filed on May 24, 2011, more than four years after the subject faxes were
sent, and, accordingly, the claims of the members of the putative class would be time-barred
unless tolling was available. Plaintiff maintains that a previously filed state action supplies the
necessary tolling and renders the putative class’s claims timely. See Phipps v. Wal-Mart Stores,
Inc. 792 F.3d 637, 643 (6th Cir. 2015) (“The timely filing of a class-action complaint
commences suit and tolls the statute of limitations for all members of the putative class who
would have been parties had the suit been permitted to continue as a class action.”) (citing Am.
Pipe & Constr. Co v. Utah, 415 U.S. 538, 550, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974); Crown,
Cork & Seal Co. v. Parker, 462 U.S. 345, 354, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983)).
On June 15, 2009, Alco was named a defendant in a TCPA action filed in state court.
(Doc. No. 118-5 (Appliance & Furniture Rental Ohio, Inc. v. Alco Vending, Inc., CV 09 695796
(Cuy. Cnty. Ct. C.P., Class Action Complaint)) ¶ 13.) The first complaint defined the class as:
All persons in Ohio who were (1) on or after four years before the filing of this
action, (2) faxed advertisements concerning the commercial availability of any
property, goods, or services by or on behalf of [d]efendant, (3) with respect to
whom [d]efendant did not have prior express permission or invitation to send
these faxes and (4) with whom [d]efendant did not have an established business
relationship.

23

(Id., emphasis added). While the state complaint was amended several times, each iteration
contained the limitation that class members could not have an “established business relationship”
with Alco. (P. Suppl. at 5026 & n.1, record citations omitted.) The state court case was
voluntarily dismissed on May 24, 2011, and the current action was filed on the same day. (Id.,
record citations omitted.) The proposed class in this case contains no such limitation.
Plaintiff concedes that “[t]o be a member of the state court class entitled to American
Pipe tolling . . . one had to be a person ‘with whom [d]efendant did not have an established
business relationship.’” (Id. at 5027, quoting state court complaint). Plaintiff further “agrees that
the Court should exclude [the 42 customers identified by Alco in its opposition brief] from the
class because they were not included in the class definition used in the prior state court class
action against [d]efendant, and the statute of limitations has arguably run against their claims.”
(Id. at 5025.) However, plaintiff insists that the existence of these outliers in the class definition
does not defeat certification.
In support, plaintiff relies heavily upon the Sixth Circuit’s decision in Bridging
Communities. There, the district court denied the plaintiff class certification upon its finding that
“determining if class members had [] consented [to receipt of the fax ads] ‘would require
investigation of the factual circumstances of each person or business that received a facsimile
transmission[.]’” Bridging Communities, 843 F.3d at 1123 (quoting district court opinion). The
Sixth Circuit reversed, and in doing so explained:
We have recognized repeatedly that “the fact that a defense may arise and may
affect different class members differently does not compel a finding that
individual issues predominate over common ones.” Young [v. Nationwide Mut.
Ins. Co.], 693 F.3d [532,] 544 [(6th Cir. 2012)] (quoting Beattie, 511 F.3d at 564).
Here, Bridging Communities and Gamble presented evidence suggesting a classwide absence of consent—evidence that B2B failed to contact anyone on the list it
24

purchased from InfoUSA to verify consent prior to faxing them advertisements. In
response, Top Flite merely alleged that class members might have given consent
in some other way. The district court adopted this idea, opining that B2B’s failure
to obtain consent “does not foreclose the possibility that some of those [class]
members gave consent to [Top Flite] and or InfoUSA[,]” even though Top Flite
did not offer any information or evidence to support that theory. (R. 65, PageID
1356.)
We are unwilling to allow such “speculation and surmise to tip the decisional
scales in a class certification ruling[,]” West Mgmt. Holdings, Inc. v. Mowbray,
208 F.3d 288, 298 (1st Cir. 2000), particularly under the circumstances present
here. Our precedent is clear that a possible defense, standing alone, does not
automatically defeat predominance. See Young, 693 F.3d at 544; Beattie, 511 F.3d
at 564; see also In re HCA Holdings, Inc., No. 14-0511, 2015 WL 10575861, at
*2 (6th Cir. Feb. 26, 2015).
Id. at 1125-26 (emphasis in original).
The court in Bridging Communities went on to observe that even if the defendant would
have been able to “point to some evidence that a defense will indeed apply to some class
members, which is more than Top Flite did here, courts routinely grant certification because
‘Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common
to the class.’” Id. at 1126 (quoting Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir.
2003) (further citation omitted)). The court noted that, had the defendant come forward with
some evidence that certain class members had given consent to receive the fax transmissions, the
district court could “place class members with potentially barred claims in a separate subclass, or
exclude them from the class altogether.” Id. (quotation marks and citation omitted).
Plaintiff argues that this Court should, as the court in Bridging Communities suggested,
carve out those 42 entities defendant identified (with supporting documentation) as having an
existing business relationship, but that it should not find the possible existence of other such
entities based solely on defendant’s speculation. Alco retorts that it is not relying on speculation,
25

but has come forward with “documents and testimony identifying class members with whom it
has an established business relationship and describing circumstances which warrant
investigation into whether the remainder of the alleged class has similar relationships.” (D.
Suppl. at 5040.) In addition to the 42 customers identified in the opposition brief, defendant
attached to its supplemental brief the affidavit of Richard Gajdos wherein Gajdos avers that he
recently reviewed the list of fax recipients produced in discovery and has identified additional
entities he “recognize[s] as having been an Alco Vending customer[,]” and has attached a list
containing 73 additional business names (Doc. No. 130-1 [“Gajdos Aff.”] ¶¶ 5-8 & Ex. A.)
Gajdos further avers that “[i]n 2005 and 2006, Alco had many other customers and contacts that
were located in the same geographic region as the businesses” on the list, but that, “[g]iven the
passage of time, [he is] not able to recall each customer by name.” (Id. ¶¶ 9-10.) According to
Alco, this “concrete evidence,” along with the Sixth Circuit’s recent decision in Sandusky
Wellness Ctr., compels a finding that the proposed class violates Rule 23(b)(3). (D. Suppl. Resp.
at 5047.)
In Sandusky Wellness Ctr., a decision issued during the period of supplemental briefing
in this case, the Sixth Circuit determined that the district court did not abuse its discretion in
denying certification of a class of fax recipients on the basis that individualized questions of
consent prevent common questions from predominating under Rule 23(b)(3). There, the
defendant sent a fax to over 53,000 local physicians on the InfoUSA list, without realizing that
the list contained former or current customers. Because it was determined that the defendant’s
customers could not claim a violation of the TCPA and would need to be weeded out by means
of a manual review, the district court denied class certification on predominance grounds. See
26

Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., No. 3:13 CV 2085, 2016 WL
75535 (N.D. Ohio Jan. 7, 2016).
In affirming the district court’s decision, the Sixth Circuit emphasized that the review
process to filter out the ineligible class members would necessitate a “form-by-form inquiry,”
requiring the trial court to review countless documents. Sandusky Wellness Ctr., 863 F.3d at 469.
The court also distinguished its prior decision in Bridging Communities, noting that there, “the
defendant had simply ‘raised the possibility’ that ‘individual class members might have solicited
or consented to receiving the challenged faxes[,]’ . . . [whereas,] by contrast, [defendant] ha[d]
produced concrete evidence of consent, evinced by hundreds of thousands of customer
documents, some of which we know for certain match the names of individuals on the [recipient
fax list]” placing the determination of class membership at the forefront of the litigation. Id. The
court explained:
Reviewing these documents, discerning which provide the requisite consent, and
then manually cross-checking each individual customer name against the [list]—
with a match indicating [defendant] has a valid defense as to that individual—is
no hypothetical scenario. Were the class certified, this undertaking would be a
tangible reality for the district court, sufficiently distinguishing the facts of this
case from the mere “speculation and surmise” that existed in Bridging
Communities.
Id.
Relying on the 42 customers it identified in its opposition brief, and the additional names
identified by Gajdos in his affidavit, Alco maintains that it has come forward with similar
“concrete evidence” to establish that the process of culling its present and former customers from
the faxing list would be too burdensome to permit certification. (D. Suppl. Res. at 5049.) It
insists that “[r]egardless of other questions that may be common to the class, identifying such
27

individuals through investigation of each persons’ relationship with Alco ‘would undoubtedly be
the driver of the litigation.’” (Id., quoting Sandusky Wellness Ctr., 2017 WL 2953039, at *6 [863
F.3d at 468].)
Plaintiff objects to Alco’s attempt to rely on Gajdos’ affidavit and the additional names
referenced therein, arguing that this information was not disclosed during discovery. It cites a
2010 interrogatory requesting the names of any and all entities on the list with which Alco
contended it had an existing business relationship. (P. Suppl. Res. at 5052.) Plaintiff highlights
Alco’s answer “Unknown[,]” as well as the fact that Alco never supplemented its answer. Siding
also cites Gajdos’s 2010 deposition testimony wherein he testified that he could not remember if
the named plaintiff in the state court action was a customer, and his 2016 testimony where he
answered “no” to the question “As far as you know, Alco didn’t have permission from the target
population or an established business relationship with the target population, correct?” (Id.,
record citations omitted.) Siding complains that Alco had a duty to supplement its discovery
responses under Rule 26(e), rendering the 2017 affidavit untimely. (Id.) It is plaintiff’s position
“discovery is closed[,]” that the Court should exclude the original 42 names, plus the newly
identified names, and that “the remainder of the recipients form the class.” (Id. at 5053.)
Plaintiff’s argument misses the mark on two fronts. First, it is plaintiff that bears the duty
of demonstrating the appropriateness of class certification, it is not defendant’s duty to come
forward with evidence demonstrating the opposite. See Comcast Corp., 133 S. Ct. at 1432
(Plaintiff must “satisfy through evidentiary proof [each of the Rule 23(a) factors and] at least one
of the provisions of Rule 23(b).”). While defendant must do more than simply raise the
possibility of an affirmative defense, see Bridging Communities, supra, it is plaintiff that must
28

ultimately convince the Court that the requirements of Rule 23 have been met. Second, the
purpose of the Rule 23 discovery period was to assist the parties in briefing plaintiff’s renewed
motion for class certification, it was not to identify with certainty the members of the proposed
class. As in the present case, the parties in Sandusky Wellness Ctr. engaged in “extensive
discovery” before briefing the plaintiff’s class certification motion. 2016 WL 75535, at *1. The
district court denied certification, not because defendant had proven which potential class
members were decidedly ineligible to share in any possible recovery, but because the process of
identifying the eligible class members—something that would take place at a later time—would
predominate the case.
Defendant has done more than simply raise a possible defense to class certification. It has
come forward with concrete evidence that the claims of certain class members may be timebarred. Additionally, unlike the situation in Bridging Communities, the determination of whether
the asserted defense applies cannot be accomplished through the use of class-wide proof. As was
the case in Sandusky Wellness Ctr., the eligibility determination would need to be made on an
entity-by-entity basis, and accomplished by means of reviewing defendant’s records to see if
defendant had an existing business relationship with each entity during the relevant time period.
While the universe of class members here numbers in the thousands, instead of the tens
thousands facing the district court in Sandusky Wellness Ctr., the analysis would still be daunting
as it would require individualized investigations into the extent and nature of Alco’s relationship
with each entity on the fax list. “Certification is thus inappropriate because [plaintiff] has ‘failed
to advance a viable theory of generalized proof to identify those persons, if any, to whom
[defendant] may be liable under the TCPA.’” Sandusky Wellness Ctr., 2016 WL 75535, at *4
29

(quoting Gene & Gene LLC v. BioPay, 541 F.3d 318, 327-29 (5th Cir. 2008) (denying class
certification where issue of consent could not be established via class-wide proof) (further
citation omitted)); see G.M. Sign, Inc. v. Brink’s Mfg. Co., No. 09 C 5528, 2011 WL 248511, at
*8 (N.D. Ill. Jan. 25, 2011) (individualized issues predominated where defendant submitted
evidence of consent that required “a class-member-specific inquiry to determine whether each
recipient did indeed give permission or have an established business relationship with
[d]efendant at the pertinent time”); Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 107 (N.D.
Ill. 2013) (individual issues predominated due to evidence that potential class members had
consented that required “a series of mini-trials to determine the population of the class and to
determine liability[]”); see also Warnick v. Dish Network LLC, 301 F.R.D. 551, 556 (D. Colo.
2014) (“If the court must undertake individualized inquires in order to determine whether a
person is a member of the class, the class is not appropriate.”) (citation omitted).
Moreover, the Court need not rely on Gajdos’s 2017 affidavit (or the names of potential
customers identified therein) to reach this conclusion. The record established that Alco had been
doing business at the same location located within the same geographic area targeted by the fax
campaign. (Gajdos I Dep. at 7-9; Gajdos II Dep. at 8.) While he did not know the exact number
of customers Alco had in 2008, Gajdos estimated that the number was in the “hundreds[.]”
(Gajdos I Dep. at 33.) Caroline Abraham testified that B2B and Macaw sent the subject faxes to
“the closest businesses” they had to defendant’s zip code. (Abraham Dep. at 47.) No effort was
made to exclude existing customers from the faxing list, and Alco did not provide B2B or
Macaw with a list of people that should (or should not) receive the fax. (Id. at 104.) In fact,
Abraham testified that it was “very likely” that some of the faxes went to customers that already
30

had a relationship with Alco. (Id. at 47; see id. at 48 [“if Alco Vending was doing business in its
local area and we send faxes in that area there is very likely an overlap [between all fax
recipients and those who were also then-current Alco customers”]; 102-03 [Q. “And we don’t
have any idea the number of entities to whom faxes were sent that already had such an existing
business relationship [with Alco]?” A. “I have no idea.”]; 103 [“only Alco Vending or the
customers themselves can tell us if they were already connected with Alco Vending”].)
It is not surprising, therefore, that Alco was able to produce documentation
demonstrating that it had an existing business relationship with at least 42 of the entities on the
fax list. (See Doc. No. 118-4.) Defendant has never represented that this was a complete list, and,
as early as 2013, has indicated that the 42 names came from an “initial review” of Alco business
records.9 (Doc. No. 45 (Alco’s opposition to Siding’s initial motion for class certification) at
1913), filed Oct. 28, 2013). Accordingly, it is reasonable to conclude that a more complete
review of Alco’s records would be necessary to determine whether the claims of other entities on
the faxing list would be similarly time-barred, and, coupled with the individualized inquiry as to
timeliness of each potential class member’s claim that would follow, would predominate the
case.10

9

It does not appear that Gajdos was asked anything about this list, and his review of company records that lead to
the creation of the list, in his 2016 deposition.
The Court is mindful of plaintiff’s allegations of discovery abuse. However, plaintiff has not moved for discovery
sanctions, and, further, it is unclear whether any such motion would be successful. Moreover, there is nothing in the
record that would demonstrate that defendant acted in bad faith, such that the Court would consider exercising its
inherent power to sanction. See Metz v. Unizan Bank, 655 F.3d 485, 489 (6th Cir. 2011) (court has the inherent
power to impose sanctions when a party has litigated “in bad faith, vexatiously, wantonly, or for oppressive
reasons,” or when the conduct was “tantamount to bad faith”) (quotation marks and citation omitted). In any event,
the Court does not rely on the evidence plaintiff now complains should be excluded.
10

31

IV. CONCLUSION
For all of the reasons set forth above, the Court finds that defendant has failed to establish
that it is entitled to judgment as a matter of law and that plaintiff has failed to satisfy its burden
of establishing that this case is suitable for treatment as a class action. Therefore, both motions
are denied.
IT IS SO ORDERED.
Dated: August 25, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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