Ira Holtzman v. Gregory Turza, 728 F.3d 682

Turza sent over 200 unsolicited fax advertisements to CPAs to promote his services; faxes lacked opt-out information; faxes bore Turza’s byline but were drafted by Top of Mind, with copy written by that firm and not edited by Turza.
District court treated faxes as unsolicited advertisements under 47 U.S.C. §227(b)(1)(C)(iii) and awarded summary judgment against Turza.
The district court certified a class of recipients for damages under §227(b)(3) and later awarded $4,215,000 total in statutory damages.
The $4,215,000 was allocated to a representative plaintiff, class counsel, and a cy pres distribution; the distribution to recipients was not clearly specified.
MessageVision logged fax transmissions and deliveries; the court found evidence supported by the log that 8,630 of 11,945 faxes were delivered, supporting common questions.
The court held the faxes were advertisements and affirmed merits but vacated the remedial order, remanding for redistributions and reconsideration of the cy pres aspects; potential adjustments to incentive awards and class counsel compensation were open questions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the faxes constitute advertisements under §227(b)(3).	Turza asserts the faxes are promotional but not ads; majority view finds ads.	Turza contends not all content is advertising; some may be informational.	Yes; faxes are advertisements under the statute.
Whether class certification was appropriate given common questions predominate.	Common questions prevail about whether each fax was an ad.	Individual issues about recipients and counts could predominate.	Yes; class certification proper; common questions predominate.
Appropriateness of the remedy and distribution of funds (cy pres, remainder).	Residue should benefit class members; defendant argues for charity or Turza.	Disputed whether residue should revert to Turza or designated charity.	Remedy vacated; remanded to determine proper distribution and recipient of any residue.
Whether the district court erred in directing distribution of any unclaimed funds.	Court had wide discretion to structure distribution.	Unclaimed funds should be handled appropriately per class action norms.	Premature to decide; remand for proper distribution framework.

Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) (common questions for class certification; predominance)
Creative Montessori Learning Centers v. Ashford Gear LLC, 662 F.3d 913 (7th Cir. 2011) (adequacy of class representatives and counsel; predominance considerations)
CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011) (class action governance; criteria for certification)
Laouini v. CLM Freight Lines, Inc., 586 F.3d 473 (7th Cir. 2009) (electronic confirmation suffices absent contrary evidence)
Travelers Property Casualty v. Good, 689 F.3d 714 (7th Cir. 2012) (common fund versus discrete injuries; distribution considerations)
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) (cy pres and distribution principles in class actions)
Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781 (7th Cir. 2004) (cy pres terminology and distinctions)
In re Lupron Marketing & Sales Practices Litigation, 677 F.3d 21 (1st Cir. 2012) (skepticism about using residue for charities in class actions)
Klier v. Elf Atochem North America, Inc., 658 F.3d 468 (5th Cir. 2011) (cy pres considerations and class action distribution)
Dennis v. Kellogg Co., 687 F.3d 1149 (9th Cir. 2012) (empirical considerations in distribution of class funds)