Landsman & Funk, P.C. v. Lorman Business Center, Inc.

Filing 73

ORDER granting 11 Motion to Dismiss; denying 21 Motion to Certify Class. Signed by Chief Judge Barbara B Crabb on 3/9/2009. (llj)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------L AN D S M AN & FUNK, P.C. on behalf of itself and all others sim ilarly situated, O PIN IO N AND ORDER Plaintiff, 0 8 - cv -4 8 1 - b b c v. L O R M AN BUSINESS CENTER, INC., D efendan t. --------------------------------------------This is a civil lawsuit in which plaintiff Landsman & Funk, P.C. contends that defendant Lorman Business Center, Inc. sent plaintiff fax advertisements in violation of the T e lep ho n e Consumer Protection Act, 47 U.S.C. § 227, and its accompanying regulations pro m ulgated by the Federal Communications Commission, 47 C.F.R. § 64.1200. Plaintiff alleges that defendant's violation is not unique to the faxes received by plaintiff and requests that this action proceed as a class action under Fed. R. Civ. P. 23. Jurisdiction is present. 28 U.S.C. § 1331; Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005). T he case is before the court on two motions: (1) defendant's motion to dismiss under R ules 12(b)(1) and (6), dkt. #11; and (2) plaintiff's motion for class certification under Rule

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23, dkt. #21. Because plaintiff's complaint fails to state a claim upon which relief can be granted, defendant's motion to dismiss will be granted. For the sake of completeness, I will decide the motion for class certification, which will be denied because plaintiff fails to satisfy all of Rule 23's requirements. A s an initial matter, I note that plaintiff is abandoning several claims. Although plaintiff alleges in the complaint that it is pursuing three causes of action on behalf of three separate classes, it states in its brief in support of its motion for class certification that it has decided to pursue only one cause of action on behalf of a single class. Plt.'s Br. for Class C ert., dkt. #22, at 1. Therefore, the other causes of action will be dismissed without further discussion. Fed. R. Civ. P. 41(b). G enerally, when a court decides a motion to dismiss under Rule 12(b)(6), it is restricted to an analysis of the complaint. Hill v. Trustees of Indiana University, 537 F.2d 2 4 8 , 251 (7th Cir. 1976). However, "[d]ocuments that a defendant attaches to a motion t o dismiss are considered part of the pleadings if they are referred to in the plaintiff's co m plaint and are central to [its] claim." Venture Associate Corp. v. Zenith Data Systems Co rp., 987 F.2d 429, 431 (7th Cir. 1993) (citations omitted). This exception to the general rule is meant to "prevent parties from surviving a motion to dismiss by artful pleading or by failin g to attach relevant documents." 188 LLC v. Trinity Industries, Inc., 300 F.3d 730, 735 (7th Cir. 2002). In this case, I find it proper to consider as part of the pleadings the

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sem inar enrollment form attached to defendant's motion to dismiss because a failure to con sider the document would permit the type of artful pleading the exception is intended to prevent. Plaintiff alleges in its complaint that All of the fax advertisements were wholly unsolicited in that they were sent to P lain tiff by or on behalf of Defendant without Plaintiff's express invitation or p er m i ssi o n . C p t., dkt. #1, at 3 ¶12. The seminar enrollment form attached to defendant's motion directly contradicts plaintiff's allegation. On the form, plaintiff's president, Ronald Funk, pro vided defendant express permission to send fax advertisements to plaintiff's fax number by listing plaintiff's fax number on the form. The form clearly explained that *PR O V ID IN G YOUR FAX NUMBER CONSTITUTES AN EXPRESS IN V IT AT IO N TO SEND YOU FAX ADVERTISEMENTS ABOUT FUTURE L O R M A N SEMINARS. D k t. #13, exh. 1. Thus, the enrollment form is central to plaintiff's complaint. By sending its fax number to defendant, plaintiff cannot assert that the fax advertisements it received from defendant were "unsolicited," so as to fall within the category of fax advertisements regulated under 47 U.S.C. § 227. Although plaintiff does not refer to the enrollment form in its complaint, it does not dispute the authenticity of the form or its content. In fact, upon d efen dan t's submission of the enrollment form to the court, plaintiff voluntarily decided not to pursue its claims that it received unsolicited fax advertisements from defendant.

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Acco rdingly, I will consider the enrollment form attached to defendant's motion to dismiss as part of the pleadings in ruling on defendant's motion. T he following facts are undisputed and taken from plaintiff's complaint, documents attached to its complaint and the document attached to defendant's motion to dismiss.

FA CT S A. Parties Plaintiff Landsman & Funk, P.C., is a New York corporation with its principal place of business in New York, New York. Plaintiff is a law firm. Defendant Lorman Business C enter, Inc. is a Wisconsin corporation with its principal place of business in Eau Claire, W iscon sin. Defendant sponsors continuing education seminars.

B . Defendant's Faxes D efendant sends fax advertisements about its continuing education seminars. On O c to ber 6, 2005, Ronald P. Funk, a shareholder employed by plaintiff, enrolled himself and his colleague, Paul Landsman, in one of defendant's seminars. On the enrollment form, Funk provided express permission for defendant to send fax advertisements regarding future sem in ars to plaintiff's fax number, 212-471-2509. Betw een August 1, 2006 and November 7, 2008, defendant sent plaintiff more than

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9 0 fax advertisements for continuing education seminars. con tained the following opt-out notice:

All the fax advertisements

Yo u may ask us not to send future advertisements to you by emailing us at custom erlist@ lorm an .com , calling us at [phone], or faxing your request to (7 1 5 ) 833-3953. Please follow the instructions provided to opt-out from receiving fu tu re faxes. For us to be able to honor this request, you must include the name of the person (or persons) and fax number (or numbers) you wish to opt-out. Failure to comply within a reasonable time with a request to opt-out would be unlawful. C p t., dkt. #1, exh. A. During that same time period, defendant sent more than 7,500,000 fax advertisements containing the same opt-out notice to other potential class members.

O PIN IO N A. Motion to Dismiss 1 . Fed. R. Civ. P. 12(b)(1) U nd er Fed. R. Civ. P. 12(b)(1), a complaint may be dismissed for "lack of subjectm atter jurisdiction." The burden in proving that subject matter jurisdiction exists rests with the party asserting federal jurisdiction, which in this case is plaintiff. United Phosphorus, L td. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). Defendant contends that this court lacks subject matter jurisdiction to hear plaintiff's claim because plaintiff lacks standing to bring its claim. Defendant contends that plaintiff has not suffered an injury in fact, that is, any actual damages. Plaintiff disagrees,

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co n ten din g that although it has not suffered any actual damages, it has standing to sue for statutory damages as provided under 47 U.S.C. § 227(b)(3)(B). I agree with plaintiff. S tandin g is a critical component of the case and controversy requirement of Article III of the United States Constitution. If a party does not have standing to sue, no case or con troversy exists and the federal courts lack subject matter jurisdiction to hear the case. D iscovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 279 (7th Cir. 20 03 ). The requirements for standing under Article III are well established. The first requ irem ent, and the only one at issue in this case, is that the plaintiff must have suffered an "injury in fact." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992). In C r ab ill v. Trans Union, L.L.C., 259 F.3d 662, 665 (7th Cir. 2001), the Court of Appeals for the Seventh Circuit discussed the injury in fact requirement with respect to claims pursued under statutes that provide for "statutory damages" and noted, M an y statutes, notably consumer-protection statutes, authorize the award of damages (called "statutory damages") for violations that cause so little measurable injury that the cost of proving up damages would exceed the damages themselves, making the right to sue nugatory. . . . The award of statutory damages could also be thought a form of bounty system, and Congress is permitted to create legally enforceable bounty system s for assistance in enforcing federal laws, provided the bounty is reward for redressing an injury of some sort (though not necessarily an injury to the bounty h u n t e r ) [. ] " Id. at 665. A ltho ugh the court's discussion in Crabill is dicta, its discussion of legally enforceable

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b ou nty systems provides guidance in this case. Under 47 U.S.C. § 227(b)(3), a person or entity may pursue "an action to recover for actual monetary loss from [ ] a violation[ of this subsection or regulations prescribed under this subsection,] or to receive $500 in damages fo r each such violation, whichever is greater . . . ." Because the statutory damages provision of the Act authorizes a consumer to sue even if the consumer suffers no actual harm, it is clearly a bounty system created by Congress for assistance in enforcing the Act. The injury is receiving a fax advertisement that violates the statute or its accompanying regulations. Therefore, plaintiff's allegation that defendant sent it fax advertisements containing an im pro per opt-out notice in violation of the regulations promulgated under 47 U.S.C. § 22 7(b )(3) is sufficient to establish standing to sue under the statute and its regulations.

2 . Fed. R. Civ. P. 12(b)(6) U nder Fed. R. Civ. P. 12(b)(6), a claim or entire complaint may be dismissed for a "failure to state a claim upon which relief can be granted." A plaintiff does not need to include detailed factual allegations, but it must allege enough facts to raise its right to relief abo ve the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). N o n eth eless, a claim should be dismissed under Rule 12(b)(6) "when the allegations in a co m p lain t, however true, could not raise a claim of entitlement to relief." Id. at 558. D efendan t contends that its Rule 12(b)(6) motion to dismiss should be granted

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because plaintiff's complaint fails to state a claim for a violation of 47 C.F.R. § 64 .12 00 (a)(3)(iv), which is a regulation promulgated under the Telephone Consumer Protection Act. Defendant contends that its opt-out notice satisfies the regulation's opt-out notice requirement; thus, plaintiff is not entitled to any relief. Plaintiff responds that defendant's opt-out notice fails to satisfy § 64.1200(a)(3)(iv) because (1) it lacks a Federal C om m un ications Commission-mandated statement that response to an opt-out request must be made within 30 days and (2) it lacks a Federal Communications Commission-mandated statem ent that a proper opt-out request must satisfy specific requirements listed in the regu latio n s. Defendant wins this round. Its opt-out notice satisfies § 64.1200(a)(3)(iv) and its motion to dismiss will be granted. Before addressing whether defendant satisfied § 64.1200(a)(3)(iv), I note that defendan t also challenges the validity of the Federal Communications Commission's regulation. However, I need not discuss that challenge because I have determined that defendant's notice satisfies the regulation. If defendant still wants to challenge the

regulation 's validity it should either petition the commission for reconsideration of the order creating the regulation, 47 U.S.C. § 405, or appeal the commission's order establishing the regulation , 47 U.S.C. § 402(a). I turn then to whether defendant's opt-out notice satisfies § 64.1200(a)(3)(iv). The regulation states, "A facsimile advertisement that is sent to a recipient that has provided

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prior express invitation or permission to the sender must include an opt-out notice that co m p lies with the requirements in paragraph (a)(3)(iii) of this section." 64 .12 00 (a)(3)(iii) states in relevant part: A notice contained in an advertisement complies with the requirements under this para graph only if ­ (A ) The notice is clear and conspicuous and on the first page of the advertisem ent; (B ) The notice states that the recipient may make a request to the sender of the advertisement not to send any future advertisements to a telephone facsimile m achine or machines and that failure to comply, within 30 days, with such a request m eeting the requirements under paragraph (a)(3)(v) of this section is unlawful; (C ) The notice sets forth the requirements for an opt-out request under para graph (a)(3)(v); S ection 64.1200(a)(3)(v) states: A request not to send future unsolicited advertisements to a telephone facsimile m achine complies with the requirements under this subparagraph only if ­ (A ) The request identifies the telephone number or numbers of the telephone facsim ile machine or machines to which the request relates; (B ) The request is made to the telephone number, facsimile number, Web site ad dress or e-mail address identified in the sender's facsimile advertisement; and (C ) The person making the request has not, subsequent to such request, pro vided express invitation or permission to the sender, in writing or otherwise, to send such advertisements to such person at such telephone facsimile machine. Although there are additional requirements for a proper opt-out notice, they are not in dispute. U n d er the Telephone Consumer Protection Act, the Federal Communications Section

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C om m ission is charged with prescribing regulations to implement the Act's requirements. 4 7 U.S.C. § 227(b)(2). The Telephone Consumer Protection Act was amended by the Junk Fax Prevention Act of 2005. One new addition was the requirement that opt-out notices be included in unsolicited fax advertisements sent to recipients who have an established b usin ess relationship with the sender. 47 U.S.C. § 227(b)(1)(C)(iii). In creating regulations to address the new opt-out notice requirement, the commission made the following s t a te m e n t : T h e Commission is persuaded that rules specifying the font type, size and wording of the notice might interfere with fax senders' ability to design notices that serve their custom ers. However, the Commission makes some additional determinations about the opt-out notice so that facsimile recipients have the information necessary to avoid future unwanted faxes. R u les and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 FR 25,967-01, 25,969 (May 3, 2006). The commission's com m ents make it clear that a proper opt-out notice need not contain any specific wording. According to 47 U.S.C. § 227(b)(2)(D)(ii), it is unlawful to fail to comply with an op t-ou t request "within the shortest reasonable time, as determined by the Commission." Thi s section of the statute explicitly provided the commission the power to interpret the term , "within the shortest reasonable time." The commission's interpretation is found in 47 C .F.R . § 64.1200(a)(3)(iii)(B), in which the commission determined that "a reasonable time to honor such requests must not exceed 30 days from the date such a request is made." 71

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FR at 25,970. In other words, failure to honor a request within 30 days is presumed to be un reason able. The commission explained further that "facsimile senders with the capability to honor do-not-fax requests in less than 30 days must do so." Id. (Emphasis added). Defendant's opt-out notice informs recipients that its "[f]ailure to comply within a reasonable time with a request to opt-out would be unlawful." (Emphasis added.) Despite the com m ission's comment about not setting specific wording requirements, plaintiff contends that defendant's notice violates the regulation because it is vague. In plaintiff's view, the o p t-o ut notice in the fax advertisements it received from defendant failed to satisfy § 64.1200(a)(3)(iv) because the notice did not state explicitly that failure to comply with an op t-ou t request within 30 days is unlawful, as stated in § 64.1200(a)(3)(iii)(B). Plaintiff takes the position that the notice must contain the phrase "within 30 days," or some other num ber of days less than 30; otherwise, recipients would not have the information necessary to avoid future unwanted faxes, that is, recipients would not know that if after 30 days the fax sender fails to comply with the opt-out request, the sender has violated the statute and accom pan ying regulations. Plaintiff misconstrues the regulation. According to the commission's comments, a sender could comply with an opt-out request within 30 days and still violate § 64.1200(a)(3)(iii)(B). For example, a sender would b e in violation of the regulation if it could comply with the request in 10 days but waited 29 days to comply. Thus, even an opt-out notice including the phrase "within 30 days" is

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som ew hat misleading about the time in which a sender must comply with an opt-out request before running afoul of the regulations. Defendant's notice properly informs recipients about the time limitation on d efen dan t's duty to comply with an opt-out request. Although defendant's notice does not explain what "a reasonable time" would be, a recipient could believe that compliance within one week was "a reasonable time." In that circumstance, the recipient may be right

depending on defendant's response capabilities. Therefore, what plaintiff characterizes as a vague notice may actually be more in accordance with the purpose behind the regulation than a notice containing the phrase "within 30 days." Regardless which phrasing would be better, what is clear is that the recipient of defendant's notice would be no less informed than if the notice contained plaintiff's suggested "within 30 days" phrasing. P lain tiff argues that even if defendant's notice need not contain a specific number of days, the notice should at least explain defendant's duty to respond in "the shortest r e a s o nable time" as opposed to merely "a reasonable time." Again, plaintiff is requesting that the notice contain specific wording, which is not required by the regulations. Furtherm ore, although the statute uses the phrase, "the shortest reasonable time," this p hrase is absent from the regulation. Plaintiff's claim is based on the regulatory, not statutory, language and on the commission's interpretation of the statute, because the statute refers to unsolicited fax advertisements, not solicited fax advertisements like the fax

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advertisem ents defendant sent to plaintiff. Although defendant's notice does not contain the specific "within 30 days" wording found in the regulation, it does provide the inform ation necessary to inform recipients about the time limitation on its duty to comply. T herefore, defendant's notice satisfies 47 C.F.R. § 64.1200(a)(3)(iv)'s requirement that a s o li c i t e d fax advertisement contain an opt-out notice in compliance with §

6 4 . 1 2 0 0 ( a ) ( 3 ) ( i i i )( B ) . T he second issue plaintiff raises with respect to defendant's opt-out notice relates to w hat the sender tells the recipient about the necessary prerequisites for an opt-out request. P lain tiff believes that defendant's notice does not properly explain that defendant does not h ave to honor opt-out requests that do not satisfy all relevant requirements. plaintiff's characterization is incorrect. T h e regulations require that a proper opt-out notice "set[] forth the requirements for an opt-out request under paragraph (a)(3)(v) of this section." 47 C.F.R. § Again,

6 4 .1 2 0 0(a)(3 )(iii)(C ). An opt-out request satisfies the regulatory requirements only if (1) th e request identifies the phone number or numbers of the fax machine or machines opting ou t of receiving future fax advertisements; (2) the request is made to the number, web site, etc. identified in the sender's opt-out notice; and (3) the person making the request does not provide express permission for the sender to send fax advertisements after the initial opt-out requ est. Id. § 64.1200(a)(3)(v).

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D efendan t's notice lists an email address, phone number and fax number where a recipient can send an opt-out request. Defendant's notice further states, "Please follow the instructions provided to opt-out from receiving future faxes. For us to be able to honor this requ est, you must include the name of the person (or persons) and fax number (or numbers) you wish to opt-out." Plaintiff contends that these two sentences fail to inform recipients that any opt-out request must be made in a specific form for defendant to be obligated to ho no r the request. Plaintiff's contention is an unpersuasive game of semantics. Defendant's n o tice makes it clear that an opt-out request will not be honored unless the request contains th e name and fax number of the opt-out requester and is sent to defendant through one of three options listed in the notice. Thus, defendant's notice satisfies 47 U.S.C. §

64.1200(a)(3)(iii)(C) by sufficiently setting forth the requirements of a proper opt-out r e q u e s t. In sum, defendant's opt-out notice satisfies 47 C.F.R. § 64.1200(a)(3)(iv). Plaintiff is no longer asserting that defendant's sending of fax advertisements violated any other statute or regulations. Accordingly, the allegations in plaintiff's complaint, however true, do no t raise a claim of entitlement to relief. Defendant's Rule 12(b)(6) motion to dismiss will be granted.

B . Rule 23 Class Certification

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W hen a complaint includes a class allegation "the district court must address the allegatio n , no matter what the parties later do." Bieneman v. City of Chicago, 838 F.2d 962, 96 3 (7th Cir. 1988). Plaintiff's complaint includes class allegations; in fact, plaintiff moved for class certification after defendant filed its motion to dismiss. Thus, the issue of class certificatio n must be addressed. "[I]f the court determines that the named plaintiffs' claims lack merit, such a decision `ordinarily, though not invariably, . . . disqualifies the named plaintiffs as proper class representative,' thus resolving the issue of class certification." C havez v. Illinois State Police, 251 F.3d 612, 630 (7th Cir. 2001) (alterations in original) ( q u o tin g Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995)). Plaintiff's complaint will be dismissed for failure to state a claim, disqualifying plaintiff as a proper class representative. Furthermore, plaintiff fails to satisfy Fed. R. Civ. P. 23's typ icality and superiority requirements. Therefore, plaintiff's motion for class certification w ill be denied. Under Rule 23 district courts maintain broad discretion in determining whether certi f i catio n of a class-action lawsuit is appropriate. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998) (citation omitted). To demonstrate that class certification is appropriate a party must first satisfy the four prerequisites listed under Rule 23(a), one of which requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class. Additionally, the party requesting certification must satisfy one of the

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requ irem ents under Rule 23(b). Pertinent to this case is Rule 23(b)(3), which requires in p art proof "that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." If the party seeking class certification, in this case plaintiff, fails to satisfy any requirement under Rule 23, class certification is precluded. Valentino v. H ow lett, 528 F.2d 975, 978 (7th Cir. 1976) (citation omitted). A lth ou gh plaintiff originally sought class certification of three separate classes, it now requ ests certification of only the following class: All persons from August 1, 2006 through present, to whom Defendant sent or caused to be sent a facsimile advertisement, advertising the commercial availability or quality of any property, goods, or services of Defendant, which did not contain a notice m eetin g the requirements of 47 C.F.R. § 64.1200(a)(3)(iii), using a telephone facsim ile machine, computer, or other device. Initially, it is clear that plaintiff is no longer a part of this proposed class, and an improper representative, because the notice it received met the requirements of § 64.1200(a)(3)(iii). Plaintiff also fails to satisfy Rule 23's typicality and superiority requirements. Thus, class certification is not appropriate and plaintiff's motion for class certification will be denied. U nd er Rule 23's typicality requirement, the issue is whether "the named representatives' claims have the same essential characteristics as the claims of the class at large." De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). The typicality requirement is meant to "ensure that only those plaintiffs . . . who can advance the sam e factual and legal arguments may be grouped together as a class." Mace v. Van Ru

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Credit Corp., 109 F.3d 338, 341 (7th Cir. 1997). Plaintiff contends that its claim that defendan t's notice fails to satisfy 47 C.F.R. § 64.1200(a)(3)(iii) is typical of all class m em bers. Although plaintiff's notice claim would be typical for class members, the problem that arises is that the class members may have additional claims that plaintiff will not. Plaintiff's broad class definition would cover fax recipients whose circumstances w ould require consideration of two additional questions of law: (1) whether the fax advertisem ents were "unsolicited"; and (2) whether defendant has an "established business relation ship" with each recipient. Although all fax advertisements must include a proper opt-out notice, regardless of the recipient, these additional questions would have to be an sw e red for each recipient. If some recipients answer "yes" to the former question and "no" to the latter, those recipients would have additional claims against defendant for additional violation s of the Telephone Consumer Protection Act and its regulations and those a d d i tio n al violations would carry additional damage awards. Plaintiff's answer to both qu estion s is "no." Thus, its circumstances would not be typical of all other class members. Furtherm ore, although in any class action for damages no two parties will ever have exactly the same claim, the issue is whether the differences will make it impractical to resolve an y significant issues regarding liability on a class wide basis. Deciding whether a recipient received an "unsolicited" fax advertisement and whether there is an "established business relationship" would require individual fact intensive inquiries that would make class wide

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decisions impractical. Answering those two questions would require an examination of past in teractio n s between defendant and each recipient. For example, to determine whether any recipients had an "established business relationship" with defendant, the court would have to ask whether there was a prior or existing relationship formed by a voluntary two-way communication betw een a person or entity and a business or residential subscriber with or without a n exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services o ffered by such person or entity, which relationship has not been previously term inated by either party. 47 C.F.R. § 64.1200(f)(5). If the proposed class came even close to covering plaintiff's estim ate of 84,029 people, having to make such a determination for each class member w o uld make a class wide decision impractical. A dd itio n ally, plaintiff has failed to prove that a class action is the superior method fo r adjudicating this case as required under Rule 23(b)(3). Rule 23(b)(3) provides a nonexhaustive list of four factors to be considered when addressing the superiority requirement. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-24 (1997). A court should consider (A) the class members' interests in individually controlling the pro secution or defense of separate actions; (B ) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C ) the desirability or undesirability of concentrating the litigation of th e claims in the particular forum; and

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(D ) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). If, as plaintiff estimates, each class member received 90 fax advertisements from defendan t and each fax violated the statute or regulations in only one way, then each class m em b er would be entitled to $45,000 in statutory damages. The possibility of recovering such a large amount of money relative to the cost of having received 90 faxes is an incentive to pursue individual claims. In other words, pursuing this lawsuit as a class action is not a superio r method of adjudication because potential class members would not need a class action as an incentive to pursue their claims. Also, as discussed under the typicality

requ ir e m e nt, determining whether fax advertisements were unsolicited and whether class m em b ers had an established business relationship with defendant for approximately 84,029 people would present difficult management problems. Furthermore, because class members w ho received unsolicited faxes may have additional claims under the statute and regulations, they would most likely be interested in individually controlling the prosecution of their claim s. Plaintiff did not receive unsolicited fax advertisements and would have no incentive to rigorously pursue additional claims related to unsolicited fax advertisements. Thus, plaintiff has not satisfied all the necessary requirements under Rule 23. Its motion for class certification will be denied.

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OR DER IT IS ORDERED that: 1. The motion to dismiss, dkt. #11, filed by defendant Lorman Business Center, Inc. is GRANTED and plaintiff Landsman & Funk, P.C.'s complaint is DISMISSED for failure to state a claim upon which relief can be granted; 2 . Plaintiff's motion for class certification, dkt. #21, is DENIED; and 3 . The clerk of court is directed to enter judgment DISMISSING this case in favor of defendant and close the case. E n tered this 9 t h day of March, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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