301 F. Supp. 3d 840
E.D. Ill.2018Background
- Cirque du Soleil retained fax broadcaster ProFax in early 2009 to send mass advertising faxes for multiple shows; transmission logs were deleted but ProFax invoices and four target spreadsheets were produced in discovery.
- The faxes included an opt-out notice directing recipients to a website/phone number; Practice Management alleges the notice was noncompliant with the TCPA's opt-out requirements.
- Practice Management filed a putative class action under the TCPA seeking statutory damages for unsolicited advertising faxes lacking compliant opt-out notices and moved for class certification.
- Defendants disputed scope and manageability, focusing on missing transmission logs and arguing many class members are out-of-state; intervening Supreme Court decision in Bristol-Myers raised personal‑jurisdiction issues for non‑Illinois class members.
- The court granted class certification in part, appointed class representative and counsel, but limited the class to Illinois residents/entities who were successfully sent certain Cirque du Soleil faxes in Illinois (two Illinois shows), finding no personal jurisdiction over claims of non‑Illinois residents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness/scope of revised class definition | Refinement narrows and makes class ascertainable; avoids fail‑safe problem | Revision improperly broadens the complaint and changes theory late | Court: revision acceptable; it narrows/clarifies class and avoids fail‑safe issue |
| Rule 23(a): commonality & typicality | Single course of conduct (same broadcaster, same employees, same trade name) yields common questions and typical representative | Named plaintiff received only one ad; other ads differ | Court: commonality and typicality satisfied — typical need not be identical |
| Adequacy of class counsel | Counsel experienced in TCPA, committed resources, no conflicts | Defendants cite protracted litigation history and alleged misconduct | Court: counsel adequate; prior litigation conduct insufficient to deny certification |
| Predominance (proof of successful transmissions) | ProFax invoices (aggregate delivered counts) suffice to prove successful sends and calculate statutory damages | Missing transmission logs require individualized proof of who actually received faxes | Court: predominance met; invoices permissible aggregate evidence under Seventh Circuit precedent |
| Superiority/manageability (missing transmission logs & class ID) | Class treatment still superior; Mullins/Mullins tools (affidavits, opt‑out lists, publication notice) can manage identification | Absence of logs defeats ascertainability/superiority; affidavits insufficient (relying on Sandusky and similar) | Court: follow Seventh Circuit in Mullins — identification/manageability addressed under superiority; class manageable with available lists, opt‑out data, affidavits, and publication; defendants cannot benefit from destroying records |
| Personal jurisdiction after Bristol‑Myers | Bristol‑Myers does not apply to federal class actions; nationwide class permissible | Bristol‑Myers bars exercising specific jurisdiction over claims of non‑Illinois residents whose injuries did not arise from Illinois contacts | Court: Bristol‑Myers applies; dismisses non‑Illinois class members' claims for lack of personal jurisdiction; limits class to Illinois residents/entities |
| Forfeiture of jurisdiction defense | Defendants waived personal jurisdiction defense by not raising earlier | Defense timely raised after Bristol‑Myers; prior raising would have been futile | Court: no forfeiture; defense excused because Bristol‑Myers created a then‑unavailable basis |
Key Cases Cited
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) (Rule 23 requires evidentiary proof by a preponderance and explains predominance/ascertainability principles)
- Comcast Corp. v. Behrend, 569 U.S. 27 (U.S. 2013) (Rule 23 is not a mere pleading standard; merits overlap permitted only as relevant)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S. 2011) (commonality requirement for class certification)
- Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455 (U.S. 2013) (limitations on merits inquiry in Rule 23 analysis)
- Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 2013) (TCPA fax cases commonly certified; broadcaster invoices can establish delivered faxes)
- Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) (ascertainability and manageability analyzed under superiority; affidavits and alternative notice methods acceptable)
- Paldo Sign & Display Co. v. Wagener Equities, Inc., 825 F.3d 793 (7th Cir. 2016) (interpretation of who qualifies as a "sender" of fax advertisements)
- Bristol‑Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (U.S. 2017) (specific jurisdiction requires connection between forum and each plaintiff's claim; non‑forum plaintiffs' claims cannot be aggregated to establish jurisdiction)
- Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (U.S. 2011) (general jurisdiction limited to forum where corporation is at home)
- Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (U.S. 1985) (due process considerations for absent class members contrasted with defendants' jurisdictional rights)