550 F.Supp.3d 555
N.D. Ill.2021Background
- In 2019 Fieldwork, a national market-research firm, sent nearly identical unsolicited faxes to Dixie Plumbing Specialties, Inc. and Advanced Dermatology offering paid participation in industry-specific surveys.
- Both plaintiffs filed putative class actions under the TCPA, 47 U.S.C. § 227, alleging the faxes were “unsolicited advertisements.”
- Fieldwork moved to dismiss both complaints (arguing the faxes are not advertisements as a matter of law), to strike class allegations, and to stay or dismiss under the primary‑jurisdiction doctrine pending FCC action on a related petition.
- Dixie alleged two theories: (1) the faxes are facially advertisements because they propose a commercial exchange (time for money) and (2) the faxes were a pretext to further advertising (pointing to Fieldwork’s sale of collected data and website marketing). Advanced Dermatology expressly waived the pretext theory and relied only on the facial‑advertisement argument.
- The court granted dismissal with prejudice as to Advanced Dermatology (based on waiver of the pretext theory) but denied dismissal as to Dixie (finding Dixie plausibly alleged a pretext theory). The court also denied Fieldwork’s motions to strike Dixie’s class allegations and to stay/dismiss under the primary‑jurisdiction doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the faxes are facially "unsolicited advertisements" under §227(a)(5) | Fax offers payment and thus advertises a commercial exchange or a service (paying for opinions) | Fax merely invites qualified participants to research; it does not advertise goods or services for sale | Not an advertisement on its face; court rejects facial‑advertisement theory |
| Whether an offer to pay for survey participation transforms the fax into an "advertisement" | Payment converts the exchange into a commercial transaction and thus an advertisement | Merely having a commercial purpose or offering payment does not, without advertising a commercially available good/service, make it an advertisement | Majority view: commercial motivation alone insufficient; court follows that rule |
| Whether the fax can be a "pretext" to further advertising (i.e., used to initiate marketing) | Dixie: plausibly alleges pretext (Fieldwork sells survey data, directs recipients to website and marketing materials) | Fieldwork: denies the faxes further advertising; they only recruit participants | Dixie: plausible pretext allegation survives 12(b)(6); Advanced Dermatology waived this theory so its claim fails |
| Whether to strike class allegations or stay under primary jurisdiction | Plaintiffs: class discovery needed; FCC petition unlikely to resolve soon so stay would prejudice plaintiffs | Fieldwork: class definition is a fail‑safe/ascertainability problem; FCC petition raises agency issues warranting a stay | Court denies strike (no showing class is categorically uncertifiable before discovery) and denies stay/dismissal (FCC action uncertain and would likely be lengthy) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for Rule 12(b)(6) plausibility)
- Physicians Healthsource, Inc. v. A‑S Medication Sols., LLC, 950 F.3d 959 (7th Cir.) (2020) (TCPA is remedial and construed in favor of consumer protection)
- Mauthe v. Optum Inc., 925 F.3d 129 (3d Cir. 2019) (commercial purpose alone does not make a message an "advertisement" under the TCPA)
- Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020) (majority holding that offer of payment for surveys can render a solicitation an advertisement)
- Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (6th Cir. 2015) (to be an ad, fax must promote goods/services having profit as an aim)
- PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019) (distinguishing interpretive vs legislative agency rules and their precedential weight)
- McCaster v. Darden Restaurants, Inc., 845 F.3d 794 (7th Cir. 2017) (doctrine prohibiting fail‑safe class definitions)
- Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) (ascertainability requirement for class definitions)
- Holtzman v. Turza, 728 F.3d 682 (7th Cir.) (TCPA class commonality observations)
- City of Chicago v. FCC, 199 F.3d 424 (7th Cir. 1999) (agency interpretations may merit deference)