MEMORANDUM OPINION AND ORDER
INTRODUCTION
“Plaintiff is a professional class-action plaintiff who regularly works with [Law Firm of] Anderson & Wanca to file TCPA cases.” Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC,
The defendants have objected to certification and have filed a cross-motion for summary judgment, submitting that the plaintiff gave its express permission to send it faxes advertising defendants’ goods and services. The materials filed in connection with the motion for class certification total 1105 pages. At first blush, this seems not to bode well for what ought to be an uncomplicated showing of requisite class action elements like commonality, typicality, and predominance. The materials filed in connection with defendants’ summary judgment motion add up to about the same: 1166 pages. Likewise, it is somewhat counterintuitive (although by no means conclusive) that there is no genuine issue of fact in those lengthy materials, especially when the question presented seems so basic: did the plaintiff give the statutorily required permission to the defendants to fax it advertisements.
To complicate things even more (due in large measure to the presentation of the defendants), the two motions are inextricably intertwined, making review of the parties’ arguments and evidence difficult. Time-honored warnings, such as the im-permissibility of asking a judge to play archaeologist with the record, Spitz v. Proven Winners N. Am., LLC,
We turn to the motion for class certification.
I.
BACKGROUND
The plaintiff filed this suit five years ago under the Telephone Consumer Protection
a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, 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, which relationship has not been previously terminated by either party.
47 C.F.R. § 64.1200(f)(6).
Opt-out notices are also required for faxes sent with the recipient’s permission. Ira Holtzman, C.P.A. v. Turza,
The potential monkey wrench is that in August of 2015, three years after the suit was filed, the defendants sought and obtained from the F.C.C. a retroactive waiver of the requirement that even faxes sent with permission have an opt-out notice. The parties are at odds over whether that waiver applies to civil litigation (or simply FCC enforcement proceedings) and whether it trumps Seventh Circuit precedent in which our Court of Appeals has said “[e]ven when the Act permits fax ads — as it does to persons who have consented to receive them, or to those who have established business relations with the sender— the fax must tell the recipient how to stop receiving future messages.” Turza,
Recently, the Court of Appeals for the D.C. Circuit vacated the FCC’s 2006 Solicited Fax Rule and held that “the"... Rule is ... unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. F.C.C.,
FACTS OF THE CASE
On its surface, the suit is about plaintiffs claim that defendants violated the Act by sending it anywhere from 32 to 36 faxes [Dkt. #204-1, at 2-3]; plaintiffs claims vary throughout the case and even in its motion for certification. The faxes were sent between July 2008 and December 2011, on an average of about once a month. [Dkt. # 204, Page 2/3]. But when the surface is scratched, this case is perhaps something of a continuation of a discovery dispute from a case that has been settled, Geismann v. Allscripts-Misy’s Healthcare Solutions, Inc., 09 CV 5114, liberally seasoned with some leftover animosity between the parties and especially between their counsel.
That much is clear from the opening paragraph of the Complaint, which alleges that, in the previous case, the defendants withheld the 32 faxes at issue now, thereby, it is alleged, perpetrating a “fraud ... upon the [plaintiffs] and [Magistrate] Judge Young B. Kim who presided over the case.” [Dkt. # 78, ¶ 1]. If the defendants have it right, the plaintiff could have filed a motion to vacate the final approval order in that case under Fed.R.Civ.P. 60(b)(3). Or, it could have asked for other relief against the defendants and their counsel. But the plaintiffs lawyers chose instead to file another junk fax case. That is a strategic decision — by which it is bound. Crowe ex rel. Crowe v. Zeigler Coal Co.,
The Complaint, which appears to be based on earlier Complaints in other cases,
[ujnsolicited faxes damage their recipients. A junk fax recipient loses the use of his fax machine, paper, and ink toner. An unsolicited fax wastes the recipient’s valuable time that would have been spent on something else. A junk fax interrupts the recipient’s privacy. Unsolicited faxes prevent fax machines from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue wear and tear on the recipients’ fax machines, and require additional labor to attempt to discern the source and purpose of the unsolicited message. A junk fax consumes a portion of the limited capacity of the telecommunications infrastructure serving the • victims of junk faxing.
[Dkt. # 78, ¶ 3].
This preamble to the Complaint recalls the original statement of legislative intent from a quarter century ago. See S. REP. 102-177, 20 (Oct. 8, 1991). But, much has changed since 1991. Even on a traditional fax machine, the cost to receive a fax in terms of ink and paper is about 2 cents. Bridgeview Health Care Ctr., Ltd. v.
That makes—it could be argued—the monetary damages to the plaintiff here about 72 cents. [Dkt. # 1, ¶ 11, Dkt. # 1-2, Pages 2-37/37], And, of course, it is easy to throw a traditional fax, like a piece of junk mail, in the trash. Am. States Ins. Co. v. Capital Associates of Jackson Cty., Inc.,
But, even if the above is correct, we are not át liberty to disregard the will of the Congress. “While a statute remains on the books ... it must be enforced rather than subverted.” Murray v. GMAC Mortgage Corp.,
Still, one must wonder why the defendants continued to send the very type of junk faxes, at least to the plaintiff, that got them into such expensive difficulty in the first place. The defendants licensed medical billing software to the plaintiff; then-faxes, though, touted free beach towels and cookie jars with office supply orders. The settlement agreement in the prior case does not indicate the payout to the class, but the defendants had to pay plaintiffs counsel nearly $600,000 in attorney’s fees and expenses. [Geismann v. Allscripts-Misy’s Healthcare Solutions, Inc., 09 CV 5114; Dkt. # 142, ¶ 12], Remarkably, the defendants sent at least three of the faxes at issue here after it had reached terms in the Geisman case. [Dkt. # 78, ¶ 12; Geismann v. Allscripts-Misy’s Healthcare Solutions, Inc., 09 CV 5114; Dkt. # 130].
These types of faxes were sent in groups of 4,000 or 5,000, or 7,000 or 8,000 at a time. [Dkt. #204-5]. One might think a business that had just agreed to pay well over a half million dollars in legal fees, over and above monetary damages, would adjust its marketing strategy a bit. Or, at the very least, stop sending faxes to what might be one of the more litigious businesses, in terms of junk fax litigation, in the country.
This case is entering its sixth year, and its docket comprises over 7000 pages of entries. As already noted, the cross motions at issue here, alone, comprise more than 2200 pages. A satellite motion to strike, brings that figure toward 3000 pages.
But, the statute is what it is and thus is to be enforced as Congress intended and not evaded by judicial action. See cases supra at 7.
III.
THE PUTATIVE CLASSES
Plaintiff hopes to certify two classes of fax recipients in this case: '
Class A — All persons or entities who were successfully sent one or more faxes stating: (1) “The Ten Second Stimulus Survey,” and were sent April 28, 2009,*1017 April 30, 2009, and May 7, 2009; (2) “Backup Tape Sale Purchase 5 backup tapes before May 29, 2009,” and were sent on May 19, 2009; (3) “EHR Stimulus Tour — Coming to Lexington KY,” and were sent on September 29, 2009, and October 6, 2009; (4) “You’re Invited Live Web Event with Glen Tullman,” and were sent on December 1, 2009; (5) “EHR Stimulus Tour — Coming to Indianapolis, IN,” and were sent on January 22, 2010, and February 1, 2010; (6) “Are You Feeling Lucky Win $105 in Copy Paper,” and were sent on March 4, 2010; (7) “Spring Savings when you order online,” and were sent on April 2, 2010; (8) ‘You’re Invited — Exclusive EHR Summit at ACE 2010,” and were sent on June 2, 2010; (9) “Have you ordered your 2011 Codebooks?”, and were sent on June 22, 2010; (10) “Take Me Out to the Ballgame,” and were sent on June 23, 2010; (11) “Free Webinar Allscripts Payerpath Denial Management,” and were sent on July 16, 2010; (12) “Alls-cripts You’re Invited Tiger/PM User Group Meeting and Opening Door to the Digital Office,” and were sent August 12, 2010; (13) “Allseripts End of Summer Special when you order online,” and were sent August 18, 2010; (14) “Alls-cripts How do I pay for an Electronic Health Record now when my Stimulus payments won’t come until later,” and were sent on September 21, 2010, October 14, 2010, and October 28, 2010; (15) “How Do I pay for an Electronic Health Record when my Stimulus payments won’t come until later,” and was sent on September 30, 2010; (16) “Allscripts Tiger EHR Enablement Program Exclusive Program for Tiger Clients,” and were sent on October 26, 2010, and November 30, 2010; (17) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2010,” and were sent December 2, 2010; (18) “Tiger EHR En-ablement Program,” and was sent on December 29, 2010; (19) “Allscripts would like to wish you a Happy Valentine’s Day and Give You a Free Gift,” and were sent on February 4, 2011; (20) “Allscripts Prepare for ICD-10-CM,” and were sent on March 23, 2011; (21) “Have you ordered your 2012 Code-books?,” and were sent on June 3, 2011; (22) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2011,” and were sent on November 1, 2011, and December 1, 2011; and (23) “Allseripts Paperless Year End,” and were sent on December 5, 2011; and (24) “New Customer Appreciation Copy Paper Special,” and were sent on January 6/7, 2010.
Class B — All persons or entities who were successfully sent one or more faxes stating: (1) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2011,” and were sent on December 1, 2011; (2) “Allscripts Paperless Year End,” and were sent on December 5, 2011; and (3) “New Customer Appreciation Copy Paper Special,” and were sent on January 6/7, 2010.
[Dkt. # 204-1, at 3].
The three Class B faxes are faxes 22, 23, and 24 in Class A. Plaintiff explains that there are two classes because it has transmission logs for the three faxes in Class B, and invoices from Westfax, the company that defendants engaged to send faxes on its behalf, for the other 29. West-fax, the plaintiff tells us through the testimony of Westfax’s president, only sends invoices for successful broadcasts. [Dkt. #204-1, at 6; #204-9 Clark Dep., at 28-29]. Mr. Clark testified that they bill their customers by “successful page” and that the defendants received a “detailed report” “indicating] whether or not each fax was successful or not....” [Dkt. #204-9 Clark Dep., at 29-29]. The invoices reveal thousands of faxes were sent. For exam-
Defendants complain that the Westfax invoices don’t indicate to whom the faxes were sent — that’s true—which would seem like a strike against ascertain-ability. A class has to be clearly defined and based on objective criteria. Mullins v. Direct Digital, LLC,
This is not to say that there will not be problems down the line, but' they will be addressed to the extent allowed by the parties’ submissions in the context of manageability. In the end, however, when a class is certified in junk fax cases, it’s up to the plaintiff and class counsel to come up with details on management of the case or face decertification. Mullins,
A class may be certified only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc. v. Dukes,
Class certification requires the plaintiff to show, by a preponderance of the evidence, that four requirements of Fed. R.Civ.P. 23(a) are met:
(1) the class is so numerous that join-der of all members is impracticable (nu-merosity);
(2) there are questions of law or fact common to the class (commonality);
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and
(4) the representative parties will fairly and adequately protect the interests of the class (adequacy of representation).
In this case, the plaintiff seeks certification under Fed.R.Civ.P. 23(b)(3), which applies to class actions when the purported class seeks monetary damages. The rule allows for class certification when “questions of law or fact common to the class members predominate over any questions affecting individual members,” and when a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R.Civ.P. 23(b)(3); Bell,
A.
Numerosity
There is no dispute that plaintiff satisfies the numerosity requirement. [Dkt. #215, at 14-16], Defendants have admitted that they sent the 36 faxes plaintiff attached to their Complaint to the plaintiffs fax number. At the very least, the plaintiffs evidence — unchallenged by the defendants — shows that defendants sent faxes to over 17,000 fax numbers in Class B. [Dkt. # 204-1, at 9]. Well over 100,000 faxes were sent in Class A. As such, even without an exact determination of size, “it’s reasonable to believe it large enough to make joinder impracticable and thus justify a class action suit.” Arnold Chapman & Paldo Sign & Display Co.,
B.
Commonality
The Supreme Court has explained that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury’ ” at the hands of the same defendant. Wal-Mart Stores, Inc.,
Class- certification is common in TCPA litigation because the main questions, such as whether a given fax is an advertisement, are common to all recipients. Turza,
While answering these questions will not resolve the entire case — there are the matters of express permission and established business relationship — those two points do not scuttle commonality. As already noted, just a single common question will suffice. Wal-Mart,
The defendants do not really make a serious challenge to plaintiffs commonality showing. They argue that plaintiffs claims are not common to the class because plaintiff may not even have been the intended recipient of some of the faxes. Brodsky v. HumanaDental Ins. Co.,
C.
Typicality
The typicality requirement “primarily directs the district court to focus on whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Muro v. Target Corp.,
Here, the plaintiffs claims are typical of the class. It received the enumerated, unwanted faxes from the defendants at its fax machine number. The claim is that the defendants acted the same way as to all putative class members. See Wagner v. NutraSweet Co.,
D.
Adequacy of Representation
1.
Often, the requirement of typicality merges with the further requirement that the class representative “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4); CE Design Ltd.,
Second, “[a] named plaintiff who has serious credibility problems or who is likely to devote too much attention to rebutting an individual defense may not be an adequate class representative.” CE Design,
In Creative Montessori, supra, Judge Posner, speaking for a unanimous panel, rejected the notion that only the most egregious misconduct of counsel should require denial of class certification because of inadequate representation.
This does not mean that defendants are invited “to try to derail legitimate class actions by conjuring up trivial credibility problems or insubstantial de
Indeed, judges are not obligated to abandon their common sense and ordinary human experiences when they come to the bench. Cf. United States v Montoya De Hernandez,
2.
We begin with plaintiffs discovery responses regarding the defense of an established business relationship. As it turns out, the responses were false. Even taken in a light most favorable to the plaintiff, the plaintiff was recklessly indifferent to the truth. Truthfulness in litigation, on a “key question” in the case is an “important issue in deciding whether [one] is a proper representative - of the class.... ” CE Design Ltd.,
When requested to admit that it was a customer of defendants, the plaintiff denied it, and went on to assert — although not asked — it was a customer of Misys Healthcare System. [Dkt. #214-7, at 9]. That formulaic, unresponsive answer to the specific request was obviously intentional. For example, responding to the second set of requests to admit, when asked if it sent a fax to defendants on March 27,
At his deposition, Dr. Elwert, one of plaintiffs principals, eventually conceded plaintiff had an account number with defendants, contradicting plaintiffs repeated and intentional discovery responses. [Dkt. # 214-3, Elwert Dep. (11/10/2015), at 244], He also conceded that he welcomed faxes from defendants if they were “[o]n something transactional.” [Dkt. # 214-3, Elwert Dep. (11/102015), at 121]. An account number and transactions done by fax make it sound like plaintiff was a customer of the defendants — like the two had an “established business relationship.” The other of plaintiffs two principals, Dr. Ruch, was selected to be the plaintiffs Rule 30(b)(6) witness. He said that plaintiff let their attorneys answer discovery. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 190-191, 204]. Yet, the attorneys never consulted with Dr. Ruch or his colleagues, even though the answers were being prepared for their verified signature. In any event, the attorneys never denied what Dr. Ruch claimed. The doctor went on to explain that he and/or Dr. Elwert read the discovery responses after they were completed. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 191]. But they did not change any óf the answers. As Ruch incredibly tried to say, he “really didn’t think too much about it ... what they are.” [Dkt. # 227-9 11/06/15].
What an extraordinary statement by someone who, in essence, is a professional litigant in junk fax cases and, if true — and that is exceedingly unlikely— what a disregard of the truth and Dr. Ruch’s obligations. If Dr. Ruch is telling the truth, it would not appear that plaintiff is directing the litigation, as it must, but rather is leaving it to the lawyers, with little regard for the truth and accuracy of what they do — or of what they say under oath. A plaintiff who seeks to be the class representative cannot simply shift, its duties to class counsel. Nor, can putative class counsel’s obligations be disregarded as cavalierly as did Dr. Ruch and Dr. Elwert. Figurehead plaintiffs are not permitted. See Lehocky v. Tidel Techs., Inc.,
Dr. Ruch allowed the false answers to be filed and affirmed their truth even though the false answers related to his own company, thereby precluding any claim — and none is made — of inadvertence. Dr. Ruch absurdly claimed that he wasn’t aware that it was his responsibility to correct untrue, sworn responses about his own company — and his own case — even though he knew they were false or even to tell his own lawyers that the answers he claimed the lawyers prepared were not true. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 191]. But if not his responsibility, whose was it? After all, they were his sworn answers about his company and his case that he caused to be brought in a federal court. He unconvincingly tried to say when asked whose responsibility was it — his or his lawyers to correct his false answers — he claimed not to have any “understanding on that.” (Dr. Ruch Dep., 191). His attempted explanation — especially coming from an experienced litigant — is unacceptable. [Dkt. # 214-7, at 8/9; # 214-8, at 9/10; Dkt. # 227-9, Ruch Dep. (11/06/2015), at 88-194, 205].
Although said in a different context, Learned Hand’s cogent observation applies here: “Justice is not a game.... ” United States v. Paglia,
One who intentionally does not tell the truth about the case cannot be an effective class representative. Eubank v. Pella Corp.,
The purpose of discovery is integral to the quest for truth and the fair adjudication of guilt or innocence. Taylor v. Illinois,
Far too many of the responses in this case did not fulfill the basic purposes of discovery. Indeed, they were antagonistic to them. Courts have repeatedly emphasized the importance of class representatives having reviewed court papers prior to filing, answering interrogatories (obviously in a truthful way), conferring with attorneys about the prosecution of the action, understanding the facts of the case are among their responsibilities as proposed class representatives. See Lehocky,
The plaintiff has similar credibility problems regarding the merits-based issue of who had authority to consent to — or, more accurately, provide permission for — faxes to be received. When asked to admit that multiple staff members and physicians had the authority to grant permission to businesses to send plaintiff faxes, the plaintiff denied the statement, saying, curiously, that “[o]nly Dr. Ruch -and'Dr. Elwert had permission to send facsimiles.” [Dkt. # 214-7, at 4-5] (emphasis supplied). That’s not even responsive to the request, as Dr. Ruch conceded at his deposition. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 194], But, more importantly, it’s not true. As Dr. Ruch conceded, he should have admitted that assertion. [Dkt. # Ruch Dep. (11/06/2015), at 194], But he did not.
If only his lawyers had thought to consult with him. Oh, but he said he saw the responses after they were prepared by counsel. But he did not change them. Nor did he even tell the lawyers of the falsities. It is nonsensical to think he would have done nothing and let the false statements go out under his verified signature. Plaintiff is, after all, “a professional class-action plaintiff who regularly works with [Law Firm of] Anderson & Wanca to file TCPA cases,” Physicians Healthsource, Inc.
“The mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity.” Avery v. Georgia,
At worst, perjury has been committed. That’s certainly a serious credibility problem — and one that pertains directly to the facts of the case — which counsels against-finding the plaintiff an adequate class representative.
Perjury is a serious matter. “The legal system offers many ways to deal with problems; perjury is not among them.” Escamilla v. Jungmrth,
This overview of the plaintiffs impermissible gamesmanship in discovery, which is not allowed, Dillon v. BMO Harris Bank, N.A,
Given what has been done by the plaintiff thus far in this case, it is difficult to give any credence to the argument that plaintiff “ ‘may be better able to monitor the conduct of counsel, who as a practical matter are the class’s real champions.’ ” [Dkt. #204-1, at 14 (quoting Murray v. GMAC Mortg. Corp.,
The same is true of its experienced lawyers. It should be noted parenthetically that acceptance of the testimony the plaintiff has offered makes the lawyers less than desirable representatives in this case since they allegedly did not consult in advance with their clients about answers to interrogatories and did not consult with them even after they allegedly prepared the answers but before they were filed. It is tantamount to a doctor letting his patient make a diagnosis and then not even consulting with him about the validity and accuracy of what the plaintiff thought. As such, the experience factor of the lawyers has vastly diminished significance in the adequacy analysis and cuts against a finding of adequacy of representation in this case. One is reminded of Judge Easter-brook’s observation in Blue Cross & Blue Shield Ass’n v. Am. Express Co.,
To support its claim of adequacy, plaintiff submits that it (and its officers) had to answer a lot of discovery and sit for depositions in Chicago. It also notes that the defendants filed a counterclaim against it that was dismissed and sent to arbitration in North Carolina — yet another “burden” claimed by plaintiff. [Dkt. # 204-1, at 15]. Neither argument suffices to make the plaintiff an adequate class representative. As all the courts have held, and as the Federal Rules of Civil Procedure inherently demand, honest and responsive participation in discovery is required of everyone who brings suit or is sued. See cases supra at 23. The fact that plaintiff is subject to the rule that govern all litigants is not enough to ensure that the applicant is qualified to be the class representative. The fact that the doctors had to travel to Chicago for depositions was a result of their desire that the plaintiff be the class representative, and the need to be deposed in Chicago resulted from their choice of Chicago as the forum for their suit, rather than the Southern District of Ohio in Cincinnati, where the plaintiffs business is located. See 28 USC § 1391(b). It was also probably a nod to the fact that its chosen Law Firm, with which it has an ongoing relationship, was in Chicago.
And if filing sworn answers in discovery is a matter that the plaintiffs representative did not give much thought to — as Dr. Ruch claimed under oath — then there is insufficient assurance that the plaintiff will be an adequate class representative.
The party seeking certification bears the burden of demonstrating that certification is proper by a preponderance of the evidence. Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago,
E.
The Defendants’ Counterclaim
As already noted, the defendants filed a counterclaim, alleging that the plaintiff breached a software agreement by subli-eensing the software to a former employee, Geri Monhollen. That counterclaim claim was dismissed for improper venue owing to an arbitration clause in the software agreement, and went to arbitration in North Carolina. The substantive question for the arbitration was whether the plaintiff subli-censed the software to a former employee.
It’s worth noting, to underscore the plaintiffs attitude towards the proper responsibilities of participating in discovery, that throughout discovery, the plaintiff denied that it sublicensed the software and denied the point in its response to the defendants’ Local Rule 56.1 statement of facts. [Dkt. # 271, ¶¶ 37, 38]. Four years into this case, plaintiff produced the very sublicense it claimed in discovery did not exist. [Dkt. # 274-2].
Also of concern is the deal Dr. Ruch said that he had made with Montgomery, Ren-nie & Johnson, which is representing the plaintiff both here and in the arbitration proceedings. According to Dr. Ruch, he and the Firm had agreed that any damages plaintiff might incur in the arbitration proceeding would be taken out of settlement proceeds in the class action, as would any fees due counsel for its representation of the plaintiff in the arbitration. [Dkt. # 227-22, Ruch Dep., at 84-85]. Thus, the plaintiff swore that one of his class action Law Firms and the plaintiff had put the class on the hook for a benefit that inured solely to the plaintiff, further undermining plaintiffs adequacy as class representative. In In re Walgreen Co. Stockholder Litig.,
An attorney for the Montgomery Firm, Matthew Stubbs, has filed a terse declaration in this case, consisting of four, 1 or 2 sentence paragraphs, spanning a mere 1 1/4 pages.
So in other words, if Dr. Ruch is telling the truth about the prior existence and the source of payment of damages, the class would not be represented by counsel or a class representative having the candor and disinterestedness that the law requires. If Dr. Ruch is not telling the truth, and there was no such deal — a matter on which the Stubbs declaration is silent (it speaks only to the present) — it is obvious that his Firm is not an adequate class counsel. If he is telling the truth and his lawyers assured him that any arbitration award against the plaintiff would come out of the class recovery, the lawyers cannot be deemed to be adequate class counsel.
The plaintiff contends that, because the arbitrator’s award went in its favor and defendants have to pay fees and costs, the point is moot. [Dkt. #291]. But it most certainly is not. The question is whether such a deal was made at all, as the plaintiff insists, or it was not, as one of the lawyers’ declarations asserts. Either way, it bodes ill for the plaintiff for the reasons we have discussed. Either the lawyer is not telling the truth and there was a deal about damages, or the plaintiff is not telling the truth and there no such arrangement — or at least not the one attributed to the lawyers. In either event, when combined with everything else that this record demonstrates has occurred, the plaintiff should not be the class representative.
Adequacy of counsel is the other part of this analysis; but without an adequate class representative or certified class, it is an ácademie exercise here — but a worthwhile one, as this may not be the last certification motion in this case. Counsel for a certified class is appointed by the judge presiding over the class action, and in deciding to appoint a lawyer to be class counsel the court “may consider,” besides the lawyer’s competence, experience, related professional qualifications, “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed.R.Civ.P. 23(g)(1)(B), (g)(4); Eubank,
Here, the plaintiff has- a battalion of lawyers representing it in its junk fax case: 13 lawyers from four different Law' Firms located in four different cities in three different states. Three of those Firms are proposed as co-class counsel: Andersen & Wanca; Bock <& Hatch; and Montgomery, Rennie & Jonson. In making their case for adequacy, the Firms, in one conclusory paragraph, focus on experience. They assert they have done many junk fax class action cases and have been found adequate in the past. So. why not now, they argue? Prior engagement is a factor in their favor, but it is not conclusive or Rule 23 and the cases would say so. They don’t. Indeed, they hold that experience alone is not the decisive factor — although it is a factor. But each case is necessarily different and presents different facts that must be considered.
The conclusory, single paragraph in the plaintiffs brief ignores the requirement
The cases cited in plaintiffs brief are not exactly informative or helpful, for courts routinely refuse to be bound by or even consider cases that arrive at conclusions without meaningful analysis. See, e.g., E.E.O.C. v. United Airlines, Inc.,
In Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC,
Still, there’s no denying these three Firms do a large volume of junk fax cases. But, given that experience, one wonders how three such Firms and a dozen veteran TCPA attorneys of record could have allowed discovery to proceed as it appears to have proceeded thus far. They have had great and repeated difficulties meeting deadlines and seemingly have no sense that they will fail to meet a deadline until the eleventh hour, among other difficulties. [See, e.g, Dkt. ## 189, 234, 260, 270].
They have .experienced similar difficulties with page limitations, supposedly not realizing until the last minute that they might need as much as 40% increase, despite having the defendants’ submissions for two months in one instance and nearly as long in another. [Dkt. # 235, # 252]. Surely an adequate representative, well-schooled in this type of litigation, doesn’t leave everything until the last minute or until it’s too late. Untimely or delayed ■requests for continuances and continuances by default are not favored and often disallowed.
Beyond the above, it is disconcerting that two of the Firms in this case have been singled out by courts for their behavior. See Reliable Money Order,
The Seventh Circuit has explained that “[n]ot any ethical breach justifies the grave option of denying class certification .. [but] “misconduct that prejudices the class or creates a direct conflict between counsel and the class [does].” Reliable Money Order,
It would certainly appear that the same basic type of conduct is at work in this case. Dr. Ruch claimed that he knew that many of his sworn answers on the interrogatories were wrong, but that he did nothing about them, thereby allowing them to pass for the truth. Indeed, he blames the lawyers for the untrue answers — even though he admitted to having read the answers before the interrogatories were filed. His excuse was he just didn’t think about it. But I do not credit his excuse. What was the point of his admitted review, if not to correct errors? It seems clear that either he was consciously lying or was indifferent to the truth if he thought a lie was more helpful to his case. This is not what an adequate class representative should be.
As we have said, it is difficult to see how the lawyers could have inadvertently made a mistake in light of their prior representations of the plaintiff, and it is unlikely, to say the least, that in preparing Dr. Ruch for his 30(b)(6) deposition, the lawyers did not review the interrogatory answers with him and thus learned of their falsity. Consequently, if they didn’t already know the truth, they must have learned it in advance of the 30(b)(6) deposition. Or else, they did not properly prepare Dr. Ruch or he continued to withhold the truth from them. Yet, so far as the record reveals, neither the lawyers nor Dr. Ruch did anything to let the other side know that the answers were untrue. It was not until the defense lawyers conducted their cross-examination of Dr. Ruch that they learned that the interrogatory answers were false in many particulars. In fact, had there been no inquiry by the defendants, it appears that Dr. Ruch was content to let the false answers stand.
F.
The Offer of Judgment
There’s also the issue of whether counsel ever conveyed the defendants’ offer of judgment to plaintiff. The defendants made a Fed.R.Civ.P. 68 offer of judgment in this case — $1500 per fax, the most damages recoverable by the plaintiff. But Dr. Ruch says he has no recollection of ever seeing any offer or being told about it. Surely a knowledgeable and highly experienced class action lawyer would tell the plaintiff that an offer had been made. Or perhaps it simply slipped his mind. Or perhaps Dr. Ruch is not telling the truth, and he was told. In any event he said the first time he ever saw the offer was at his 2015 deposition. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 19-29],
With three dozen faxes at issue, the offer totaled over $50,000. That seems a substantial amount — especially one that a lawyer would communicate to his client by email, if not by phone, and there would be some discussion about it, likely to leave an impression on the client. As Dr. Ruch admitted, it was important to him to settle the case, [Dkt. # 227-22, Ruch Dep. (2/10/2016), at 67-68], and therefore, it seems odd that the doctor would forget about so significant a capitulation by the defendant involving a $50,000 settlement offer. Of course it’s possible, but if important things like this don’t sufficiently get his attention and cause him to act and to remember, how is he an adequate class representative? And if he is willing to let a substantial offer like $50,000 go by the boards — and not even recall it — one may fairly ask whether he is not really seeking to further the financial interest of the lawyers and thus by definition the plaintiff would not be an adequate class representative. It beatrs repeating that Ruch claims not to recall whether his lawyers sent him the answers to discovery for his review. That claim is not acceptable. In any event, he conceded he reviewed them and found a number of important errors. But he choose not to correct their falsity. As he incredibly tried to say, he gave the truth or falsity of the answers little or no thought. I find that testimony untrue and intentionally evasive and it goes to the issues in this case.
Plaintiffs counsel insist that Dr. Ruch was told about the offer of judgment. Plaintiffs corporate counsel, John Lowry, has filed a declaration countering Dr. Ruch’s testimony, stating that he communicated the May 2012 offer to Dr. Ruch, and that Dr. Ruch rejected it. He says he then informed class counsel of the rejection. [Dkt. #238-3]. Attorney Lowry attaches no documentation to his declaration, nothing like an email one might expect
G.
Predominance
The next issue to consider is whether “questions of law or fact common to the class members predominate over any questions affecting individual members” and whether a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3); Bell,
“The predominance inquiry asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” Id. (quotations omitted). “When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” Id. (quotations omitted).
It has already been shown that there are a number of issues or questions common to all putative class members. The defendants contend that “individualized issues of consent” predominate. [Dkt. # 215, at 19]. That argument, if accurate, would make cases like this unfit for class resolution, and that is not how Circuits around the country have ruled-. In any event, “consent” isn’t an issue; express permission is. That’s not logomachy; the two are very different. Throughout the law, consent may be express or implied. See, e.g., Reynolds v. Tangherlini,
The Federal Communications Commission’s rules implementing the TCPA and the Junk Fax Prevention Act make this quite clear:
*1035 In the absence of an [established business relationship20 ], the sender must obtain the prior express invitation or permission from the consumer before sending the facsimile advertisement. Prior express invitation or permission may be given by oral or written means, including electronic methods. The Commission expects that written permission will take many forms, including e-mail, facsimile, and internet form. Whether given orally or in writing, prior express invitation or permission must be express, must be given prior to the sending of any facsimile advertisements, and must include the facsimile number to which such advertisements may be sent. It cannot be in the form of a “negative option.”
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 FR 25967-01, 25972,
It’s clear from the materials the defendants have submitted on this point that they are using the term “consent” advisedly — and tendentiously — and not as a convenient shorthand for express permission or invitation. For example, the defendants submit the declarations of nine “absent proposed class members identified from the BFX reports for Class B who swear that they ... consented to receive fax ads from [defendant].” [Dkt. #215, at 20], Aside from portions in which the declar-ants identify themselves, the Declarations are essentially identical. Each declarant states that: -
I do not specifically remember receiving any particular faxes from [defendants] promoting its products or services but, in general, I have consented to receiving such communications from [defendants] and others, in the past and currently as well.
[Dkt. # 227-30].
So, not one of these declarants can testify that they provided express permission to the defendants to send them faxes. They claim they consented in general, but we don’t know how they “consented.” Maybe it wasn’t expressed orally or in writing. They don’t even have any recollection of receiving any faxes from the defendants. We don’t know what the declarants consider “consent,” so there is no way to know whether any purported “consent” qualified as express permission under the Act. The declarations are essentially meaningless; they are nothing but legal conclusions and do not answer the questions posed by this case — as those who prepared the declarations must have known.
The defendants also point to an additional number of declarations they submitted on this point in Physicians Healthsource, Inc. v. A-S Medication Services, Inc., 12-cv-5150 (N.D.Ill.). Again, all these declarations discuss “consent,” not “express permission,” and do not reveal the meaning of the term as used by the declarant or the specifics about how “consent” was provided. Indeed, if defendants are correct that these declarations were submitted in Phy
Both groups of declarants may have, as they say, appreciated receiving faxes from defendants, but that’s not the same as express permission. Judges in this district have rejected this type of evidence as failing to address the real issue: express permission. See, e.g. Gehrich v. Chase Bank USA N.A.,
Even if these few declarations amounted to what the defendants would like, it would still not be enough to scuttle class certification. Significantly, the cases defendants rely on — as defendants concede — require specific evidence from the sender that the sender received express permission. See Chapman v. First Index, Inc.,
Aside from that, defendants point to the testimony of Brian Moffett, whom they conclusorily call their “corporate representative” — his actual position is not identified in any way. [Dkt. # 215, at 5]. Mr. Moffett testified he would always tell his staff to get permission to send a fax, although there was no written policy to that effect and no proof that his instructions were always or even generally followed. Indeed, when the defendants responded to the plaintiffs first requests to admit, they “de-nie[d] that [they] maintained] a record of persons who provided express consent to receive advertisements by facsimile transmission.” [Dkt. # 238-7, ¶ 12],
For the sake of argument, let’s say that there was an unwritten, corporate policy (not just Moffett’s personal policy) and that it proves that employees were always supposed to ask for permission before faxing ads. It’s not clear from this position how predominance is scuttled by a method of proving, class-wide, that express permission was sought. Now, again, this is not to say that Mr. Moffett’s testimony proves what the defendants say it proves or that a fact-finder would credit it. But it shows that the plaintiffs proof will be class wide.
The same goes for the defendants’ Sal-esforce database. The main problem here for the defendants is that they failed to disclose the witness who would testify as to the Salesforce database, and that witness’s affidavit has been stricken. [Dkt. #282, #283]. So the defendants are left empty-handed. But even giving credence to the description defendants provide in their response brief, the Salesforce evidence doesn’t necessarily show that the defendants invariably got permission from recipients before sending fax ads. According to the brief, the database is a list of businesses that provided defendants with their fax number. [Dkt. # 215, at 5]. That can be an element of the “established business relationship” defense, but mere provision of a fax number, as already discussed, doesn’t amount to express permission or invitation. And, as with Mr. Moffett’s claimed unwritten permission policy, the Salesforce database, to the extent it shows anything, is another method of class-wide proof.
If the defense of “established business relationship” is removed from the equation, as defendants have chosen to do here, it would seem that, in every case, individualized issues of express permission would predominate, thus precluding class actions in junk fax cases. Yet, class certification in these cases is the norm. Turza,
One additional issue tips the scales in favor of class-wide issues predominanat-ing: the requirement of an opt-out notice.
The requirements for the notice are specific:
(i) the notice is clear and conspicuous and on the first page of the unsolicited advertisement;
(ii) the notice states that the recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines and that failure to comply, within the shortest reasonable time, as determined by the Commission, with such a request meeting the requirements under subparagraph (E) is unlawful;
(iii) the notice sets forth the requirements for a request under subparagraph , (E);
(iv) the notice includes—
(I) a domestic contact telephone and facsimile machine number for the recipient to transmit such a request to the sender; and
(II) a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement; the Commission shall by rule require the sender to provide such a mechanism and may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, exempt certain classes of small business senders, but only if the Commission determines that the costs to such class are unduly burdensome given the revenues generated by such small businesses ....
47 U.S.C.A. § 227(b)(2)(D). This, it bears repeating, is capable of class-wide resolution. Either the notices on the three dozen faxes comply or they don’t. It’s not a question of mini-trials and individualized proof.
The other issue defendants raise is the fact that they sought, and the F.C.C. granted, a waiver from any requirement that faxes sent with prior express permission include an opt-out notice. Again, however, this is a class-wide concern. If the defendants can establish they had express permission to send faxed advertisements— through its class-wide methods of proof— then whether the waiver is applicable can also be determined on a class-wide basis. There is nothing individualized about it. See, e.g., Physicians Healthsource, Inc. v. A S Medication Sols., LLC,
Superiority
Finally, the plaintiff must also demonstrate “that a class action is superi- or to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “Superiority” must be assessed in terms of class members’ interests in proceeding individually, the extent and nature of existing litigation, the desirability of concentrating the litigation of the claims in this particular forum, and manageability concerns, which in turn requires a court to consider “the costs and benefits of the class device.” Id. at 663-64. Regarding this last factor, the Seventh Circuit has advised that “refusing to certify on manageability grounds alone should be the last resort.” Mullins,
As for the first factor — class members’ interests in proceeding individually — plaintiff states, simply and unadornedly, that “class members have little economic incentive to sue individually.” [Dkt. # 204-1, at 23]. On the one hand, the incentive argument seems obvious, and court after court agrees, that “small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Pastor,
We are repeatedly cautioned that a class can only be certified after a “rigorous” analysis, that it is the plaintiffs burden to convince the court that all prerequisites for certification are met, and that Fed.R.Civ.P 23 is not merely a pleading standard. See Wal-Mart Stores, Inc.,
Thus, it is not enough to say that a small recover is a disincentive to the filing of a suit under the Act and that a class action is thus essential. After all, individual suits were contemplated by the drafters of the Act. See 137 Cong.Rec.S. 16205-06 (daily ed. Nov. 7, 1991)(statement of Sen. Holl-ings); see also Italia Foods, Inc. v. Sun Tours, Inc.,
As for the second factor, the plaintiff says there is no pending litigation. Perhaps that’s true. But perhaps not. A lawyer’s unsupported statement in a brief is not evidence. United States v. Chapman,
As for the third factor — desirability of litigating the claims in the instant forum— plaintiff submits, without citation to any authority, that “judicial efficiency is best served by litigating all claims in one proceeding.” As with the other factors, it is standard practice to accept counsel’s ipse dixit on this point. The advisory committee comments tell us that the provision concerns the “desirability of concentrating the trial of the claims in the particular forum by means of a class action, as opposed to allowing the claims to be litigated separately in forums to which they ordinarily would be brought.” Fed.R.Civ.P. 23(b)(3)(1966 Amendment)(advisory committee comments). Notably, the advisory committee speaks not only of whether a class action is the preferred method of litigation, but whether “the particular forum” where the class action was brought is desirable. Other than Chicago being convenient for lead putative class counsel, it’s not clear why it was chosen, because, as already noted, there are complaints about having to travel from Cincinnati to comply with routine discovery. Still, courts generally assume that it is more efficient to dispose of multiple claims in one proceeding — regardless of location — than multiple proceedings in multiple fora.
Given thousands of recipients in both classes might have brought claims, that’s a valid assumption. But many may not have been vexed by deleting an email once a month and would not choose to litigate as the plaintiff did here, or, unlike the plaintiff here, might have bothered to complain to the sender or sought to opt out. Many may have given express permission to the defendants. Many, many more may have, as the defendants claim, simply consented, in layman’s terms, to receiving the faxes. Although that would not qualify as express permission and preclude a claim from a legal standpoint, it wouldn’t result in an actual claim being filed.
But, as already noted, it is essentially de rigueur to accept that the first three factors listed in Fed.R.Civ.P. 23(b)(3)(A) point to the class action as the superior method for adjudicating junk fax claims. And we do so here, not reflexively, but based on this record. Still, the defendants do not concern themselves with the factors listed in Fed.R.Civ.P. 23(b)(3)(A)-(C). [Dkt. #215, at 23-26]. The hill the defendants choose to fight on is Fed.R.Civ.P. 23(b)(3)(D), which directs the court to consider the likely difficulties in managing the class action. It’s a dicey factor in this instance, at least with regard to proposed Class A. The plaintiff has the transmission records — showing recipient phone numbers — for just 3 of the 32 fax broadcasts. Plaintiff essentially concedes that there is
But, for plaintiff, the only answer is to certify both classes anyway because the problem of manageability stems from the defendants not having kept records of those to whom they sent faxes. Plaintiff does not argue, nor does it cite any case law holding, that it is incumbent upon businesses to maintain lists of recipients of their faxes, but submits that it wouldn’t be fair to scuttle the class because the defendants didn’t keep track of their faxes. Perhaps, but the question remains as to how the class members will be identified and contacted.
Fed.R.Civ.P. 23(c)(2) requires “the best notice that is practicable under the circumstances .... ” Here, plaintiff espouses notice by publication, which has been employed in junk fax cases. See, e.g., Birchmeier v. Caribbean Cruise Line, Inc.,
The defendants complain that “[g]iven the potential liability of over $200 million and the resulting pressure to settle were class certification to be granted, it would be fundamentally unfair to ... certify a class” where a majority of the members may have consented to receive faxes. [Dkt. # 215, at 26]. But that’s the nature of the TCPA. Judge Posner has called the penalties for sending faxes “draconian,” Creative Montessori,
That means the threat of massive damage awards that far exceeds any harm that might have been suffered by the plaintiff and often leads to settlements even when there exists a defense to the action. See CE Design Ltd.,
CONCLUSION
For the foregoing reasons, the plaintiffs motion for class certification [Dkt. # 204] is denied. The plaintiff can continue to maintain its own suit against the defendants, if it chooses.
Notes
. It is "not unlawful to be a professional class action plaintiff” and have a "business model” that combines being a "professional class action representative.” CE Design Ltd. v. King Architectural Metals, Inc.,
. It is not as though plaintiff's lawyers are not highly experienced lawyers in TCPA cases. See Bridgeview Health Care Ctr., Ltd. v. Clark,
. For example, paragraph three of the Complaint in this case is identical to paragraph three in the Complaint in one of plaintiff's counsel’s TCPA cases from 2006. G.M. Sign, Inc. v. Franklin Bank SSB, 06-cv-0949 [Dkt. # 1, Page 10/67],
. One would think that a business, let alone one that was just sued successfully, ought to at least pause before sending any further fax to its successful adversary — especially the
. 137 Cong. Rec. S 16205-06 (daily ed. Nov. 7, 1991) (statement of Senator Hollings). More than 2,300 lawsuits were filed in 2014 (compared to 1,100 in 2012, 350 in 2010, and 16 in 2008). Daniel T. Stabile, The “Strangest Statute” Chief Justice Roberts Has Seen: Uncertainties of Litigating TCPA “Junk Pax” Class Actions, Fla. B.J., November 2015, at 30; Linetsky, supra at 6, 90 Neb. L.Rev. at 94-97.
. To put the volume of submissions in context, if counsel had faxed these pages to the court, and the court sued them under the TCPA, they’d potentially be on the hook for over $4 million in damages.
. There is nothing particularly new in the underlying theory. It is not in its ultimate purpose different than allowing a plaintiff in an overtime case from testifying from memory or his own records where the defendant allegedly kept no records. Any other rule, the Supreme' Court has said, would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. See J. Truett Payne Co., Inc. v. Chrysler Motors Corp.,
. The lawyer there was one of the lawyers in this case, in which he is the lead counsel, as he is in the rather large number of cases in which he has and is participating. Creative Montessori,
. The Court of Appeals held in CE Design'
"testimony that [Mr. Pezl] was unaware that he had authorized publication of CE's fax number in the Blue Book is both difficult to credit, as the district judge acknowledged, and, if disbelieved, could be thought evidence of Pezl’s fearing that the publication of CE’s fax number could indeed be construed as permission to fax ads to that number. The legend "Contact Us” next to CE’s fax number on the company’s website could be thought to reinforce an inference of permission from the publication of the fax number in the Blue Book. ... And notice that the invitation or permission required by the statute for authorizing faxed ads may be "in writing or otherwise” — no specific form of invitation or permission is specified. The district judge did not give adequate consideration to the cumulative' significance of Pezl’s testimony, the publication of CE’s fax number in the Blue Book, and its publication on CE’s website, in ruling that CE was an adequate representative of the class.”637 F.3d at 726 .
. For one, plaintiff "obviously” was a customer of the defendants and had some kind of business relationship with them. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 191]. And Dr. Ruch knew it was, as he admitted at his deposition. And his lawyers should have known it if they had bothered to go over the answers they (allegedly) prepared to the interrogatories. The reality simply is that telling the truth was not either in the lawyers’ or the plaintiff’s perceived interests.
. Truthful responses in discovery are necessary lest we return to what Wigmore aptly called trial by ambush. Cf., United States v. Procter & Gamble Co.,
. It bears repeating that the focus here is not on general credibility which leads to a further concern about the witness’s credibility in his testimony relating to the case. To the contrary, the credibility concerns raised here go directly to the facts of the case that the plaintiff has brought.
. The plaintiff, it was claimed, may have breached its software agreement by subleasing the software, and defendants filed a counterclaim about it; but it was the plaintiff who argued that the claim had to be arbitrated in North Carolina pursuant to a clause in the contract. [Dkt. # 144, at 3]. Again, as with venue here, this was plaintiffs conscious choice.
. The fifth paragraph is a single sentence declaring under penalties of perjury that the statements in the Declaration are true and correct. Dr. Ruch said at his deposition he did not know Mr. Stubbs’ hourly rate, and that he got no monthly invoices from the firm. Dr. Ruch and thus the plaintiff apparently were unconcerned about the amount of fees they might owe one of the firms that is seeking to be class counsel in the instant case.
. See also Jean Edward Smith, John Marshall: Definer of a Nation (1996) ("More than five weeks have elapsed since the Supreme Court declared the necessity of proving the fact, if it exists. Why is it not proved? Chief Justice Marshall said he could not assume that the government was remiss in seeking the proof; the only conclusion was that the evidence did not exist.").
. See also, Sandifer v. U.S. Steel Corp.
. Indeed, the courts have been critical of frequently late extension requests and compli-anee that requires continuation of discovery. See, e.g., Reales v. Consolidated Rail Corp.,
. The mandatory "rigorous” analysis in class action cases necessitates review of the proposed counsel in this case. Andersen and Wanca is one of those Firms with scores of junk fax cases pending at all times. As part of the discovery process in four such cases, the Firm hoped to get records of recipients from a third-party fax broadcaster. The Firm ultimately obtained possession of a hard drive with the information it desired and promised the provider/broadcaster that the names would be used for a very limited purpose, an he was assured by the Firm that all would be done in a perfectly lawful way and that the names being provided would not be misused for any other purpose beyond litigation.
The promise proved illusory and the disk provided the Firm with the names that were ultimately used for solicitation of class members in a separate suit which had not yet been initiated, but soon was. The Firm later used the disk to provide it with a mailing list to future class members and new suits were initiated that would not have been brought had the Firm not misled the provider of the disk. Indeed, because of its misrepresentations to the provider of the disk, the Firm was able to file over 100 junk fax class actions. See Reliable Money,
In the wake of two appeals in which it was called upon to discuss the asserted unethical conduct of these Firms, the Seventh Circuit indicated that discipline, through denial of class certification based on inadequacy of representation, was none of the courts' business, unless an ethical breach prejudiced an attorney's client or undermined the integrity of the judicial proceedings. That should be left to state bar authorities and disciplinary proceedings. Reliable Money Order,
Assuming fee amounts comparable to the figure in Geismann v. Allscripts-Misy’s Healthcare Solutions, Inc., 09 CV 5114, settlements in just half of those cases would reap a $30 million windfall for the Firms. As counsel for the defendants put it in Reliable Money Order, the court looking the other way would seem only to incentivize and reward overly aggressive and unethical attorney conduct. Reliable Money Order,
. All plaintiff will say about the false discovery responses is that it has “addressed” these "unfounded allegations.” [Dkt. 238 at 6], But the answers are demonstrably and concededly
. Arguably, the established business relationship defense provides an avenue to show implied permission. But, for the purposes of this motion and the defendants’ motion for summary judgment, which the defendants have insisted on combining [Dkt. # 224], the defendants chose to paint themselves into a corner and abandon any defense based on an established business relationship.
. Defendants changed their answer nearly two years later, amending their denial to state that they had one or more policies by which they obtained express invitation or permission. [Dkt. # 238-8, ¶ 12]. Of course, that still doesn’t amount to maintaining any record of those who granted express permission or invitation.