CE Design Ltd. v. C&T Pizza, Inc.
32 N.E.3d 150
Ill. App. Ct.2015Background
- C&T Pizza (Great Chicago Pizza) hired a New York fax broadcaster (B2B) to send printed fax advertisements in May 2006; B2B transmitted thousands of faxes and logged successful/failed transmissions.
- CE Design Ltd., a Chicago-area engineering firm, received the faxes on May 4 and 5, 2006, and sued C&T for violations of the TCPA, Illinois consumer-protection law, and conversion.
- Plaintiff moved for class certification; the trial court certified a class of all persons who received those specific "Pizza-Pasta-Deli" faxes on May 4–5, 2006, without express consent or an established business relationship.
- C&T appealed interlocutorily under Ill. S. Ct. R. 306(a)(8), arguing (inter alia) lack of predominance/commonality, inadequate representation, ascertainability/standing, and that individualized issues (receipt, consent, business relationship) defeat class treatment.
- The appellate court reviewed class-certification standards (numerosity, commonality/predominance, adequacy, superiority) and the TCPA’s prohibition on sending unsolicited fax advertisements, and affirmed certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether common questions predominate under § 227(b)(1)(C) | Sending unsolicited faxes is the violation; B2B fax logs establish transmissions so common questions predominate | Predominance defeated because each class member must prove actual receipt of the fax | Court: Receipt is not an element of the TCPA; B2B logs show successful transmissions and common issues predominate |
| Whether consent or established business relationship defeats class treatment | No evidence of consent or EBR; hypotheticals insufficient to defeat certification | Individualized inquiries about prior consent or EBR make class improper | Court: Defendant produced no evidence of consent/EBR; speculation insufficient to deny certification |
| Ascertainability/standing of class members | Class is defined by fax numbers and transmission dates; list exists | Must identify owners of fax machines; only owners have TCPA standing | Court: Forfeited by C&T; class ascertainable from fax logs and naming specific individuals not required |
| Adequacy of representative/counsel | CE Design and class counsel are experienced and will fairly represent class | Counsel misconduct/history (relying on Creative Montessori) undermines adequacy | Court: Evidence does not support disqualification; subsequent case law supports counsel adequacy; trial court did not abuse discretion |
Key Cases Cited
- CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir.) (prior TCPA class-action litigation by plaintiff)
- CE Design, Ltd. v. Cy’s Crab House North, Inc., 731 F.3d 725 (7th Cir.) (related appellate decision addressing TCPA class issues)
- Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489 (7th Cir.) (affirming class counsel adequacy after Creative Montessori)
- Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913 (7th Cir.) (earlier decision scrutinizing class counsel conduct)
- Miner v. Gillette Co., 87 Ill.2d 7 (Ill.) (standard for adequacy of class representatives)
- Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100 (Ill.) (class-action prerequisites)
- Haudrich v. Howmedica, Inc., 169 Ill.2d 525 (Ill.) (forfeiture rule for issues not raised below)
- Hinman v. M&M Rental Ctr., Inc., 596 F. Supp. 2d 1152 (N.D. Ill.) (statute prohibits sending unsolicited faxes; receipt not an element)