322 F.R.D. 458
N.D. Ill.2017Background
- From July–October 2013 Med‑Care sent six identical fax “broadcasts” (July 2 & 10; Oct 2, 9, 17 & 25) advertising an Ipratropium‑Albuterol nebulizer kit; Arwa Chiropractic received a fax in each broadcast.
- Over 46,000 fax transmissions were sent in the six broadcasts; none of the faxes contained an opt‑out notice.
- Med‑Care obtains physician contact info either from patients or by looking up information in the National Provider Index (NPI); it does not independently verify doctor‑patient relationships.
- Plaintiff sued under the TCPA, 47 U.S.C. § 227, and state claims; plaintiff moved to certify a Rule 23(b)(3) class limited to recipients of those six faxes alleging they were unsolicited advertisements.
- Defendants asserted an express‑consent defense (variously: consent from the patient, implied consent because doctors gave numbers to patients, or prior returned refill forms) and argued individualized consent inquiries defeat certification.
- The court conducted the required rigorous Rule 23 analysis, rejected defendants’ consent theory as unsupported and legally deficient on the record, and granted class certification for the TCPA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Numerosity | Large class — >46,000 fax transmissions to thousands of recipients makes joinder impracticable | Disputes only as to whether transmissions equate to distinct recipients | Numerosity satisfied; defendants (as senders) did not dispute numbers |
| Commonality | Single common question: whether the prescription request form is an "advertisement" under the TCPA; other common issues exist (opt‑out, damages, willfulness) | Argues typicality/individual defenses undermine commonality | Commonality satisfied — whether faxes are advertisements is a common question driving the case |
| Typicality / Adequacy (consent defense) | Named plaintiff’s claims arise from same conduct and legal theory as class; counsel experienced in TCPA | Defendants contend consent defense applies to many class members but not named plaintiff, creating atypicality and inadequacy | Typicality and adequacy satisfied; court found defendants’ consent theories legally weak or unsupported by evidence and thus not an ‘‘arguable’’ defense that would defeat adequacy |
| Predominance & Superiority | Common TCPA questions predominate because same form was sent to all and no viable individualized defenses; class adjudication is efficient | Consent requires individualized, plaintiff‑by‑plaintiff inquiries (CE Design compels case‑by‑case consent analysis) | Predominance and superiority satisfied; court rejected defendants’ reading of CE Design and found no viable individualized consent defense on the record, so class resolution is appropriate |
Key Cases Cited
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir.) (Rule 23 rigorous analysis and predominance discussion)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S.) (Rule 23 requires rigorous factual inquiry)
- CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir.) (discussing adequacy when a unique/arguable defense exists against class representative)
- Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682 (7th Cir.) (TCPA class actions are normally amenable to class treatment; whether fax is an advertisement is common)
- Szabo v. Bridgeport Mach., Inc., 249 F.3d 672 (7th Cir.) (courts may require evidence at class certification and resolve factual disputes)
- Osorio v. State Farm Bank, 746 F.3d 1242 (11th Cir.) (limited discussion of consent and shared telephone lines; not a broad endorsement of third‑party consent)