205 F.Supp.3d 970
N.D. Ill.2016Background
- Alpha Tech Pet, Inc. sued Lagasse LLC and related entities under the TCPA/Junk Fax Protection Act, alleging eight unsolicited commercial fax advertisements were sent to it in 2012 without the statutorily required opt-out notice.
- Alpha Tech attached the eight faxes to the complaint; all bore the LagasseSweet logo and included the same removal phone number and brief apology language.
- Alpha Tech alleged tangible harms (paper/toner loss, employee time) and that it had not given permission to receive the faxes.
- Defendants moved to dismiss under Rule 12(b)(6) (arguing several faxes were informational, not advertisements) and to strike class allegations under Rule 12(f); they also opposed class certification as premature.
- The court evaluated whether the contested faxes were plausibly "advertisements" under 47 U.S.C. § 227 and whether Alpha Tech’s proposed class definition was a fail‑safe/ascertainability problem, then redefined the class rather than striking it and denied dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the February 15, March 15, April 25, April 26 faxes are "advertisements" under the TCPA | Faxes promote goods/services (price info, invites to order) and thus are advertisements covered by §227 | Faxes are purely informational or transactional (price lists, system notices) and fall outside TCPA or are only incidentally advertising | Court: Plaintiffs plausibly pleaded these faxes are advertisements; denial of Rule 12(b)(6) dismissal |
| Whether FCC guidance excluding "informational communications" controls interpretation of "advertisement" | Rely on statutory/regulatory definitions; FCC guidance is not binding here | Rely on FCC ruling distinguishing informational vs. advertising faxes and incidental-advertising safe harbor | Court: Seventh Circuit precedent limits weight of FCC pronouncements; even if binding, facts here do not fit FCC’s informational-communication or newsletter exemptions at pleading stage |
| Whether the proposed class definition is ascertainable / a fail-safe class | Class should cover recipients of faxes lacking a proper opt-out notice (statutory scope) | Class is impermissibly defined by liability (fail-safe) and thus unascertainable | Court: Struck portion referencing "prior express permission," redefined class to recipients of the specific attached faxes or any fax containing the identical opt-out message to avoid a fail-safe class; granted leave to amend |
| Whether individualized issues (consent/EBR) defeat commonality/predominance for class | Class-wide adjudication is feasible; consent/EBR may be resolved on a common basis depending on how contact lists were compiled | Individualized consent/EBR inquiries preclude commonality/predominance and justify striking class allegations | Court: Denied motion to strike class allegations for lack of commonality/predominance; factual discovery may resolve whether consent is individualized or class-wide |
Key Cases Cited
- Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811 (7th Cir. 2009) (pleading sufficiency under Rule 12(b)(6) standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard and dismissal framework)
- Mann v. Vogel, 707 F.3d 872 (7th Cir. 2013) (pleading plausibility and inference in favor of non‑movant)
- Ira Holtzman C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 2013) (limited weight of FCC interpretive guidance on TCPA)
- Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) (ascertainability and the fail‑safe class problem)
- Messner v. Northshore Univ. Health Sys., 669 F.3d 802 (7th Cir. 2012) (addressing class definition refinements and fail‑safe concerns)
- Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015) (procedural considerations regarding class certification timing)