MEMORANDUM OPINION AND ORDER
From July to October 2013, Plaintiff Arwa Chiropractic, P.C. (Plaintiff) received a series of six faxes from Med-Care Diabetic & Medical Supplies, Inc. (Med-Care). Based upon its receipt of these faxes, Plaintiff has filed suit against Med-Care and its CEO, Steven Silverman (together, Defendants), alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. In addition, Plaintiff has alleged state law claims for conversion and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp, Stat. 505/1 et seq.
Plaintiff has filed a motion for class certification pursuant to Federal Rule of Civil Procedure (Rule) 23(b)(3), seeking certification solely with respect to its TCPA claims. For the reasons provided herein, Plaintiffs motion is granted.
I, Background
Med-Care is a for-profit company that sells medication and medical equipment to consumers. PL’s Mot. Class Certification (Pl.’s Mot.) at 2, ECF No. 93. Before Med-Care ean complete a sale of medication or medical equipment to a consumer, a licensed medical provider must prescribe the medication or equipment. Id. at 3. Thus, to process a sale to a consumer, Med-Care typically instructs one of its employees to call the consumer and request that the consumer provide his or her medical provider’s information, so that Med-Care can then contact
If the consumer is unable to provide full contact information for his or her medical provider, Med-Care’s employees can fill in missing details about the provider using the National Provider Index database. Pl.’s Mot. at 4. Med-Care does not contact medical providers directly to confirm the existence of a doctor-patient relationship or to obtain the provider’s contact information. Id.
From July through October 2013, Med-Care sent six “broadcasts” of faxes to thousands of medical providers. Id. at 7-8. These broadcasts were sent on July 2, July 10, October 2, October 9, October 17, and October 25, 2013. Id. at 8. In total, over 46,000 faxes were sent during these six broadcasts, and Arwa received a fax from Med-Care in each one. Id. at 7-8.
Each of the faxes sent during these six broadcasts concerned an “Ipratropium-Albu-terol Nebulizer Kit.” Id. The faxes stated: ‘Tour patient has asked us to contact you regarding authorization for a Nebulizer and its medications to help with their breathing problems. ... In order to supply those products to your patient, under the Medicare program, we must obtain a signed order by the patient’s physician.” Id.; see also PL’s Ex. I, Six Faxes at 2-8. All of the faxes sent in these broadcasts were identical except for the date and the patient- and doctor-specific identifying information listed on each fax. Id. at 8. None of the faxes contained an opt-out notice. Id. at 7.
Plaintiff contends that the faxes it received during these six broadcasts were sent in violation of the TCPA. In addition, Plaintiff has moved for class certification of its TCPA claim pursuant to Rule 23(b)(3), seeking to certify a class defined as follows:
All persons who were sent one or more facsimiles from Med-Care Diabetic & Medical Supplies of Boca Raton, FL on any of the following 6 dates: July 2, 2013, July 10, 2013, October 2, 2013, October 9, 2013, October 17, 2013, or October 25, 2013, stating, ‘Tour patient has asked us to contact you regarding authorization for a Nebulizer and its medications to help with their breathing problems. ... In order to supply those products to your patient, under the Medicare program, we must obtain a signed order by the patient’s physician.
PL’s Mot. at 9.
With the proposed class definition in mind, the Court now turns to the merits of Plaintiffs motion for class certification.
II. Legal Standard
Class certification is governed by Rule 23. Under Rule 23(a), class certification is permitted only when: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); see also Messner v. Northshore Univ. HealthSystem,
In addition, when, as here, class certification is sought pursuant to Rule 23(b)(3), “proponents of the class must also show: (1) that the questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members; and (2) that a class action is superior to other available methods of resolving the controversy.” Messner,
It is important to note that “Rule 23 does not set forth a mere pleading standard.” Parko v. Shell Oil Co.,
Although “the court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits,” Messner,
III. Analysis
Plaintiff has moved for class certification of its TCPA claims pursuant to Rule 23(b)(3), arguing that its proposed class meets the requirements of numerosity, commonality, typicality, and adequacy under Rule 23(a), as well as the requirements of predominance and superiority under Rule 23(b)(3). In response, Defendants contest all the requirements except numerosity. Mindful that “certification is proper only if the trial court is satisfied.. .that the prerequisites of Rule 23(a) have been satisfied,” Wal-Mart,
A. Rule 23(a)(1): Numerosity
Rule 23(a) requires that members of a certified class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is satisfied where “it’s reasonable to believe [the class is] large enough to make joinder impracticable and thus justify a class action suit.” Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities, Inc.,
Plaintiff asserts that it has established numerosity under Rule 23(a) because invoices from Med-Care’s fax vendor with fax transmission quantities show that Defendants sent over 46,000 faxes to thousands of recipients. Pl.’s Mot. at 10; Pl.’s Ex. M, Westfax Invoices at 2-7. The Court notes that the invoices specify the quantity of fax transmissions, but they do not appear to indicate the number of recipients per se. Id., Ex. M. It may be possible, for example, that Defendants sent thousands of fax transmissions to a small number of recipients. Be that as it may, Defendants, as the senders of the faxes, are in a position to know the number of recipients, and they do not dispute Plaintiffs assertion. The Court therefore finds that Plaintiff has satisfied the numerosity requirement.
B. Rule 23(a)(2): Commonality
For class certification to be proper, the class members’ claims must present common questions of law or fact. Fed. R. Civ. P. 23(a)(2). A question is common to the class if it generates a common answer, such that determination of the question will “resolve an
Here, Plaintiff asserts that a number of common questions drive the resolution of its claims, including: (1) whether Defendants’ “prescription request form” is an “advertisement” within the meaning of 47 U.S.C. § 227(a)(5); (2) whether Defendants obtained “express invitation or permission” from recipient doctors before sending the faxes to them; (3) whether the forms included compliant opt-out language; (4) whether Defendants have sender liability for the faxes; (5) whether Plaintiffs and other class members are entitled to statutory damages; (6) whether Defendants’ violations were knowing or willful and, if so, whether the Court should treble the statutory damages; and (7) whether the Court should enjoin Defendants from faxing advertisements in the future without prior express consent or without an opt-in notice. PL’s Mot. at 11.
While Plaintiff has proposed a number common questions, PL’s Mot. at 11-12, it is sufficient for our purposes to note that whether the faxes at issue would qualify as “advertisements” under the TCPA is a central question common to all recipients. See Holtzman,
To the extent that Defendants discuss commonality at all, they do so only in the context of their objections to Rule 23’s typicality and predominance requirements.
C. Rule 23(a)(3): Typicality
Typicality under Rule 23(a) requires that the named plaintiffs’ claims “arise[ ] from the same event or practice or course of conduct that gives rise to the claims of other class members” and “are based on the same legal theory.” Keele v. Wexler,
Plaintiff states that it meets the typicality requirement because Defendants faxed each class member one or more “prescription request forms” regarding an Ipra-tropium-Albuterol Nebulizer Kit. PL’s Mot. at 12. According to Plaintiff, each of the class members was subjected to the same conduct,
In response, Defendants argue that Plaintiffs claims are not typical of the class it proposes to represent because, unlike other putative class members who received prescription request forms that contained names of their patients, Plaintiff received a form with the name of a person who was not its patient. Defs.’ Resp. at 7, 12. Defendants opine that Rule 23(a) typicality is destroyed because Defendants have a consent defense against other members of the putative class that Defendants cannot assert against Arwa Chiropractic, P.C., the named plaintiff. Id at 8,14. Defendants rely on the Seventh Circuit case CE Design,
Because the Court does not otherwise find any reason to doubt that Plaintiffs claims have the same essential characteristics as the claims of members of the class, the Court concludes that the typicality requirement is satisfied.
D. Rule 23(a)(4); Adequacy
The adequacy requirement under Rule 23(a)(4) comprises two parts: “the adequacy of the named plaintiffs counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest of the class members.” Retired Chi. Police Ass’n,
Plaintiff asserts that it satisfies both components of the adequacy requirement. With respect to the qualifications of counsel, Plaintiff notes that counsel Bock, Hatch, Lewis & Oppenheim, LLC has “proven expertise in TCPA litigation,” PL’s Mot. at 13; see PL’s Ex. N, BHLO Resume at 3-17. Counsel has “been litigating TCPA claims since 2003 and ha[s] prosecuted dozens of such cases to successful resolution, including many class-wide settlements.” PL’s Mot, at 13. With respect to the second prong of the adequacy requirement, Plaintiff explains that it and the other class members all seek statutory damages under the TCPA, they have no antagonism toward one another, there is no potential for conflicting interests, and Plaintiff understands the obligations and nature of its claims. Id.
In response, Defendants do not dispute that the first prong of adequacy is met, and the Court notes counsel’s extensive experience with over twenty TCPA cases. See PL’s Mot., Ex. N at 3-17. The Court therefore finds no indication that Plaintiffs counsel will be inadequate to protect the interests of the class.
In response to the second prong of adequacy, Defendants replicate their argument against typicality, Namely, Defendants argue that they have an affirmative defense against an unspecified percentage of putative class members, which Defendants concede they do not have against the sole named Plaintiff. Defs.’ Resp. at 12-14, 6-11. Defendants do not explain why exactly this difference would make Plaintiff inadequate. However, the Court construes Defendants’ argument to suggest that the sole named Plaintiff would be inadequate because it would not have an incentive to adequately litigate against a defense to which most other class members would be subjected. Id.
In its reply, rather than addressing whether Defendants’ consent defense is unique to Plaintiff, Plaintiff argues that Defendants’ asserted consent defense is entirely without merit.
Defendants’ consent defense is grounded in the TCP A, 47 U.S.C. § 227(b)(1)(C), which provides that it is unlawful for any person to use a fax machine to send to another fax machine an “unsolicited advertisement.” The TCPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” Id., § 227(a)(5) (emphasis added).
Defendants do not argue that any doctors to whom they sent “prescription request forms” by fax provided express invitation or permission directly to Med-Care. Rather, consent allegedly came in three decidedly indirect forms.
Ail of Defendants’ express consent arguments lack viability based on the current record. As to the first argument, Plaintiff correctly notes, PL’s Rep. at 5, that the plain language of § 227(a)(5) unambiguously states that express invitation or permission (“consent”) may be given only by the recipient of the advertising.
As to Defendants’ second argument, even if the legal argument were correct, Defendants make factual claims that are unsupported by the evidence before the Court. Cf. CE Design,
Moreover, even accepting each of Defendants’ unsupported factual assertions as true, Defendants do not explain how this course of conduct constitutes express consent on the part of the doctor-recipients to receive unsolicited advertisements by fax from Med-Care. Even if doctors “permitted [their] p&-tient[s] to use that fax number,” Defs.’ Resp. at 8, that plainly is express permission for only the patient to send a fax to the doctor rather than permission for Med-Care, or any other person, to do so.
In sum, Defendants’ arguments that they had the express invitation or permission of recipient doctors that § 227(a)(5) requires lack viability based on the record before the Court. Accordingly, the Court concludes that Plaintiff would likely not need to devote significant resources to litigate the consent defense on behalf of the class, and Plaintiff would not have a misalignment in incentives to protect the interests of the class as a whole.
Therefore, given the nature of Plaintiffs ■ claims, there is no indication that the named representative will be inadequate to protect the interests of the class, or that there is risk of antagonistic or conflicting claims arising within the class.
E. Rule 23(b)(3): Predominance
Rule 23(b)(3) builds upon Rule 23(a)’s requirement of commonality by further requiring that common questions “predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). Common questions are said to predominate over other issues in the case when “a common nucleus of operative facts and issues underlies the claims brought by the proposed class.” Messner,
Plaintiff argues that predominance is satisfied because the class members’ claims arise under the same federal statute (the TCPA), the Defendants sent all class members the same form of advertisement in six fax blasts during a four-month period in 2013, and none of the putative class members
In response, Defendants argue that, for every putative class member, an individual inquiry is required as to whether the fax recipient gave prior express consent, “with no means of resolving that disputed issue on a class wide basis.” Defs.’ Resp. at 11-12.
In support of this argument, Defendants assert that the Seventh Circuit’s holding in CE Design effectively prohibits TCPA class actions where a Defendant places consent in issue.
In this case, Plaintiff has met its burden of demonstrating that common questions predominate over individualized issues as to the rest of the class. Each of the class members’ claims arises under the TCPA, Defendants sent all class members the same form by fax, and there appear to be no viable individualized defenses based on the record at this stage. See Zeidel v. A&M (2015) LLC,
F. Rule 23(b)(3): Superiority
Rule 23(b)(3) permits class certification only in eases where “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The Seventh Circuit has recognized that, like commonality, Rule 23(b)(3)’s superiority requirement is closely related to the requirement of predominance — the more that common questions predominate over other issues in the ease, the more likely it is that a class action is the superior method of adjudication. See Mess-ner,
Plaintiff argues that resolution of the TCPA issues on a classwide basis, rather than in thousands of individual lawsuits, would be an efficient use of both judicial and party resources. Pl.’s Mot. at 15 (quoting Hinman v. M & M Retail Ctr.,
Because common questions predominate for the reasons explained above, class certification is the most efficient method of adjudicating the class members’ TCPCA claims. See Messner,
IV. Conclusion
For the reasons stated herein, Plaintiffs Rule 23 motion for class certification [92] is granted. Plaintiff may proceed with its TCPA claims on behalf of the following class:
All persons who were sent one or more facsimiles from Med-Care Diabetic & Medical Supplies of Boca Raton, FL on any of the following 6 dates: July 2, 2013, July 10, 2013, October 2, 2013, October 9, 2013, October 17, 2013, or October 25, 2013, stating, “Your patient has asked us to contact you regarding authorization for a Nebulizer and its medications to help with their breathing problems. ... In order to supply those products to your patient, under the Medicare program, we must obtain a signed order by the patient’s physician.
IT IS SO ORDERED.
Notes
. Defendants assert that "plaintiff's lack of typicality undermines .., any possible commonality amongst the putative class," Defs,’ Resp. at 3. However, Defendants then go on to argue that Rule 23(a)(3)’s typicality requirement is not satisfied, without explaining why typicality would, in this case, also affect the commonality analysis. Id. at 6-11. Defendants then refer to commonality once more, stating, "[s]imply put, plaintiff is unable to satisfy Rule 23’s commonality and predominance requirements.” Id. at 11. However, Defendants then proceed to make arguments with regard to Rule 23(b)(3)’s predominance and superiority requirements, without again referring to commonality. Id. at 11-12.
.' In CE Design, Plaintiff, but not other putative class members, had published its number in the Blue Book of Building and Construction.
. In CE Design,
. The Court assumes, without deciding, that Defendants' asserted consent defense against Plaintiff would, if viable, be "peculiar” to Plaintiff or a subset of putative plaintiffs. Id. However, neither party has presented evidence as to what percentage of fax recipients were properly matched to their actual patients. Given Med-Care’s information-sourcing practices, including, inter alia, asking end consumers for information about (heir doctors and looking up information in the NPI database, Pl.'s Mot. at 3-4; Defs.' Resp. 6-7, it may be the case that a significant percentage of fax recipients were incorrectly matched to consumers who were not their patients. For its part, Med-Care asserts, without citation to any supporting evidence, that the mistaken doctor-patient matching "applies only to Arwa Chiropractic and not the proposed class.” Defs.’ Resp. at 9.
.Defendants also present a fourth consent-defense argument, namely that "if a doctor had published the fax number [anywhere], there will be an unsettled dispute” requiring "individualized review” for each doctor-recipient as to whether the doctor gave express consent. Defs.’ Resp. at 10. This argument is most appropriately analyzed within the context of Rule 23(b)(3)'s predominance requirement, and the Court addresses the argument there.
.Plaintiff also claims, and Defendants concede, that all the relevant faxes failed to contain an “opt-out" notice. Pl.’s Rep. at 5; Defs.’ Resp. at 5. However, Plaintiff's arguments regarding opt-out notices are irrelevant to class certification, and the briefing of both parties appears to demonstrate some confusion regarding the role of opt-out notices.
Despite parties' apparent belief to the contrary, under 47 U.S.C. § 227, a lack of an opt- out notice is not an element of a TCPA violation. Rather, § 227(b)(C) provides that where Defendants have an "established business relationship" with recipients, § 227(b) (C) (i), the TCPA is not violated where, inter alia, the advertisement contains a sufficient opt-out notice, § 227(b)(C)(iii). Thus, where a recipient has no "established business relationship” with a defendant and yet receives an unsolicited advertisement, the TCPA is violated regardless of whether the advertisement contains an opt-out notice.
An "established business relationship” is defined in 47 CFR § 64.1200(f)(5) as a "prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber... on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity....” Here, Defendants do not argue at this stage that they have an established business relationship with any recipients of their faxes. The opt-out notice issue is therefore irrelevant to class certification.
. Defendants’ reliance on the Eleventh Circuit case Osorio v. State Farm Bank,
. Express permission to use a fax number is also not in itself express permission to send an advertisement to that fax number. The TCPA requires the latter in order for the advertisement to not be unsolicited. See 47 U.S.C. § 227(a)(5).
. To the extent that further developments in the factual record would require the Court to reevaluate this determination, it has the discretion to do so. See Fed. R. Civ. P. 23(c)(])(C); Fonder v. Sheriff of Kankakee County,
. Defendants also rely on misguided interpretations of Eleventh and Fifth Circuit cases in support of their individualized-inquiiy argument. Defendants assert that Osorio,
. Defendants' individualized-inquiry argument also contradicts their consent-defense argument against typicality. For the purposes of assailing typicality, Defendants argue that they have a consent defense against most of the putative class (but not named Plaintiff) because, by providing their doctors’ information to Med-Care, those consumers categorically provided consent to Med-Care to send their doctors forms by fax. But for purposes of assailing predominance, Defendants assert that consent can only be determined on a plaintiff-by-plaintiff basis. The arguments contradict one another, and they are both incorrect.
.Moreover, despite Defendants’ claim to the contrary, CE Design,