DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
I. PROCEDURAL BACKGROUND
On Fеbruary 11, 2010, Reliable Money Order, Inc. (“Reliable Money” or “plaintiff’) filed this lawsuit in the Milwaukee County Circuit Court, individually and as the representative of a class of similarly-situated persons (collectively “plaintiffs”), against McKnight Sales Company, Inc. (“McKnight” or “defendant”) alleging violations of the TCPA and common law conversion. (Def.’s Notice of Removal 5, ECF No. 1.) On March 22, 2010, McKnight removed the action to federal court pursuant to 28 U.S.C. §§ 1331, 1367, 1441, and 1446. (Def.’s Notice of Removal 1, ECF No. 1.)
On July 1, 2011, Reliable Money filed a motion for Rule 23 class certification arguing that it satisfies the requirements of Fed. R.Civ.P. 23(a) and (b)(3). (Pl.’s Mot. 1-3, ECF No. 33.) The motion has been fully briefed and is ready for resolution by this court. For the reasons that follow, the plaintiffs motion for class certification will be granted.
On April 6, 2006, or April 7, 2006, Reliable Money and members of the proposed class were faxed an advertisement by Business to Business Solutions (“B2B”), a fax advertising business operated by Caroline Abraham (“Abraham”). (Pl.’s Mem. in Support 8, 7, ECF No. 34.) The fax advertised a “Direct Magazine Service” offered by McKnight. (Pl.’s Mem. in Support 1, ECF No. 34.) Though the issue is disputed, the plaintiff alleges that McKnight authorized B2B to fax thousands of McKnight’s form advertisement, which included the language “20% OFF Cover of Magazines” and “30% OFF Cover of Books.” (Def.’s Notice of Removal 15.)
Reliable Money does not remember receiving the specific fax at issue in this case. (Def.’s Mem. in Opp’n, Ex. S 26-29, ECF No. 41-19.) However, the plaintiffs attorneys discovered through a similar ease involving B2B, CE Design Ltd. v. Cy’s Crabhouse North, Inc., No. 07 C 5456,
Reliable Money received an advertisement letter from the plaintiffs attorneys describing “junk fax” violations and informing the plaintiff that it may be entitled to damages. (Def.’s Resp. to PL’s Supp. Br., Ex. O, ECF No. 52-16.) Reliable Money contacted the plaintiffs attorneys in response to the letter. (PL’s Supp. Br., Ex. EE 54, ECF No. 49-31.) Thereafter, the plaintiff initiated the present action.
III. DISCUSSION
Generally, only individual named parties may conduct litigation. Gen. Tele. Co. of Southwest v. Falcon,
To proceed as a class, the plaintiff must first satisfy two implicit requirements: (1) the representative plaintiff must have standing to sue and (2) the class must be definable. Bzdawka v. Milwaukee Cnty.,
The defendant does not dispute that the proposed class meets the numerosity, commonality, and typicаlity requirements of Rule 23. However, the defendant asserts that the named plaintiff and class counsel will not adequately protect the interests of the class as a whole. Additionally, McKnight argues that the “class action is not the superior method of adjudication” of the plaintiffs claims and that “the definition proposed by [the] plaintiff is unworkable in light of the statute.” (Def.’s Mem. in Opp’n 19, 21, ECF No. 41.) Although the defendant only takes issue with a few requirements under Rule 23, it is the court’s responsibility to ensure that all the requirements are met. See Falcon,
A. Implicit Requirements
In addition to the express requirements of Rulе 23, courts in this circuit have recognized two implicit requirements that the plaintiffs must satisfy. Bzdawka,
As discussed above, in order to have standing for purposes of a class action, the named representative must be a member of the class that he, she, or it purports to represent. Here, the record demonstrates that B2B faxed an advertisement to Reliable Money and 3,313 other persons, allegedly on behalf of McKnight. (Pl.’s Mem. in Support 1, ECF No. 34.) Reliable Money therefore fits into the class definition рrovided in the plaintiffs complaint.
The defendant argues that Reliable Money does not have standing because “Rehable Money was completely unaware of ever having allegedly received a facsimile ... advertisement from McKnight Sales Company, Inc.” (Def.’s Mem. Opp’n 1, ECF No. 41.) Several courts have found that the TCPA does not require knowledge of receipt, only that a fax was successfully transmitted. See CE Design Ltd. v. Cy’s Crabhouse North, Inc.,
Here, the plaintiff has presented fax logs indicating that 3,314 faxes were successfully transmitted by B2B on April 6, 2006, and April 7, 2006. (ECF No. 34-4.) On April 6, 2006, B2B made 2,215 attempts to send faxes, and 967 faxes were successfully transmitted. (Biggerstaff Report 15, ECF No. 34-4.) On April 7, 2006, B2B made 4,400 attempts to send faxes and 2,347 faxes were successfully transmitted. (Biggerstaff Report 21, ECF No. 34 — 4.) Additionally, the fax log lists all 3,314 fax numbers to which the defendant’s form fax advertisement were successfully transmitted. (Biggerstaff Report 23-37, ECF No. 34 — 4.) The fax log indicates that B2B successfully transmitted a fax to Reliable Money on April 7, 2006. (Bigger-staff Rеport 19, ECF No. 34 — 4.)
The evidence demonstrates that Reliable Money is a member of the class, and the fact that Reliable Money does not personally recall receiving the “junk fax” is inconsequential because personal knowledge of receipt is not necessary under the TCPA. I therefore find that Reliable Money has standing to pursue its claims.
To satisfy the second implicit requirement, the plaintiff need only propose a class that is “precise enough to enable the court to determine whether at any given time a particular individual is or is not a member of the class.” Bzdawka,
The plaintiff defines the class as follows:
All persons who were successfully sent a facsimile on April 6, 2006, or April 7, 2006, offering “20% OFF Cover of Magazines” and “30% OFF Cover of Books” from MSC of Pittsburgh, PA.
(Pl.’s Mem. in Support 10, ECF No. 34.)
The proposed class in this case clearly delineates who does and does not fit within the parameters of this class action. The court can easily and objectively determine whether a particular individual is a member of the class. The plaintiffs class definition is
B. Rule 23 Requirements
Rule 23 of the Federal Rules of Civil Procedure provides the requirements for certifying a class action. Initially, an individual litigant must establish four prerequisites under Rule 23(a): numerosity, commonality, typicality, and fair and adequate representation. Rosario,
The district court has broad discretion in determining whether certification of a class action lawsuit is appropriate under Rule 23. Olson v. Brown,
The plaintiff claims that the proposed class meets the four prerequisites of Rule 23(a) and also, that the proposed class meets the additional requirements set forth under subsection (b)(3). The defendant argues, however, that the plaintiff and the plaintiffs counsel are inadequate representatives, thereby failing to satisfy Rule 23(a)(4). Additionally, the defendant argues that a class action is not a superior method of adjudicating the plaintiffs claims, as required under Rule 23(b)(3). The court addresses each of the prerequisites and requirements for class certification below.
1. Numerosity
Rule 23(a)(1) of the Federal Rules of Civil Procedure provides for certification if a class is “so numerous that joinder of all members is impracticablе.” Generally, joinder is considered impracticable for classes numbering at least 40 persons. Swanson v. Am. Consumer Indus., Inc.,
Here, the plaintiff has established that “McKnight’s form advertisement was successfully sent to 3,314 different fax numbers. (Pis.’ Mem. in Support 10.) Joining 3,314 persons to this action is impracticable. I therefore find that the plaintiff has met the numerosity requirement of Rule 23(a).
2. Commonality
“Commonality requires the plaintiff to demonstrate that class members ‘have suffered the same injury,’” not “merely that they have all suffered a violation of the same provision of law.” Dukes,
The class in this action asserts the same injury: faxes sent to the potential class members in violation of the TCPA. The events surrounding the transmission of each of the faxes are identical. Additionally, determining whether the defendant violated the TCPA in relatiоn to one plaintiff will likely answer whether the defendant violated the TCPA with regard to the remaining 3,313 members of the class. There is a possibility of individual defenses, such as a prior existing business relationship or prior express permission. But generally, the answer to the common question will resolve the class claims. Thus, the court finds that the plaintiff has established commonality.
3. Typicality
A “plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc.,
The plaintiff alleges that potential class members were sent a form fax advertisement from McKnight on April 6, 2006, or April 7, 2006. The class members assert that MeKnight’s form fax violated the TCPA and resulted in conversion of their property. Based on the record, Reliable Money’s claims “have the same essential characteristics as the claims of the class at large.” The court therefore finds that the named plaintiff meets the typicality requirement of Rule 23(a).
L Adequacy of the Class Representative
The plaintiff must demonstrate that it “will fairly and adequately protect the interests of the сlass.” Fed.R.Civ.P. 23(a)(4). The requirement that the class representative be adequate is relatively modest and will generally be satisfied if the plaintiff does not have interests that are antagonistic to those of the other class members. Shurland v. Bacci Cafe & Pizzeria on Ogden Inc.,
For example, in King Architectural Metals, the Court of Appeals reversed and remanded the district court’s decision to certify the class due to the potential inadequacy of the named plaintiff.
The defendant argues that Reliable Money is an inadequate representative for the class because “Reliable Money has no independent knowledge of the allegations in its Complaint.” (Def.’s Mem. in Opp’n 12, ECF No. 41.) Specifically, McKnight argues that the plaintiff does not have any records relating to the subject fax, or any knowledge that it actually received the fax, and is “merely a pawn оf the class lawyers.” (Def.’s Mem. in Opp’n 12, ECF No. 41.)
The defendant cites In re AEP ERISA Litig., No. C2-03-67,
It bears repeating that the burden on the named plaintiff to establish that he or she is an adequate class representative is not high.... [C]lass representatives need to be more than mere figureheads who lend their names to pleadings, but can be far less than hands-on decisionmakers propelling the litigation forward____ Suffice it say that even under the most lenient standard, [the named plaintiffs] complete absence from this case during most of its pendency is simply nоt enough for him to qualify as an adequate class representative. With even a minimal amount of consultation with his lawyer, he likely would have passed muster. But that did not happen.
Id.
The court finds that Reliable Money is more than a mere “figurehead.” Reliable Money contacted class counsel, after receiving counsel’s advertisement, seeking retribution for the significant number of “junk faxes” that it had received. (Pl.’s Supp. Br. Re: Adequacy of Counsel, Ex. EE, 54:11-22, ECF No. 49-31.) Additionally, Reliable Money, through its current owner, has given deposition testimony regarding the plaintiffs experiences related to this case. (Def.’s Mem. in Opp’n, Ex. S, ECF No. 41-19.) Thus, based on the low standard and the evidence of Reliable Money’s participation in this lawsuit, the court finds that Reliable Monеy is not a mere “figurehead” and therefore qualifies as an adequate class representative.
Additionally, there is no evidence that Reliable Money’s interests and claims do not align with the members of the proposed class. There is no allegation that Reliable Money may have invited or permitted the faxed advertisements, or that Reliable Money had an existing business relationship with McKnight prior to receiving the faxed advertisement. Thus, from the information presently available, Reliable Money is not subject to a defense that would make it unsuitable as class representative under King Architectural Metals. Instead, the plaintiffs claims are aligned with the potential class members, who are defined as being persons who were successfully sent the same fax. In addition, like Reliable Money, the potential class members likely have no personal knowledge of whether the “junk fax” at issue in this case was successfully sent.
The record demonstrates that Reliable Money’s interests and claims are aligned with those of the potential class members. I therefore find that the named plaintiff is an adequate class representative for purposes of Rule 23.
5. Adequacy of Class Counsel
Under Rule 23, the court must consider:
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.
Fed.R.Civ.P. 23(g)(1)(A).
Along with the statutory requirements, thе Seventh Circuit has provided additional guidance to determine if class counsel is adequate. “Class counsel owe a fiduciary obligation of particular significance to their clients when the class members are consumers.” Creative Montessori Learning Centers v. Ashford Gear LLC,
In its memorandum in opposition to the plaintiffs motion for class certification, the defendant argues that class counsel is made
The alleged misconduct in this case occurred in the context of another ease, CE Design Ltd. v. Cy’s Crabhouse North, Inc., No. 07 C 5456,
Prior to the hearing, “the parties ... submitted voluminous filings” and the court determined that the filings presented “sufficient information for the court to rule without holding a ... hearing.” CE Design Ltd. v. Cy’s Crabhouse North, Inc., No. 07 C 5456,
After briefing of the plaintiffs motion for class certification in the instant case was completed, the Seventh Circuit issued its opinion in Ashford Gear,
obtaining material from Abraham’s files on the basis of a promise of confidentiality that concealed the purpose of obtaining the material, a purpose inconsistent with maintaining confidentiality and likely to destroy Abraham’s business; and implying in the letter to [the representative plaintiff] that there already was a certified class to which the [plaintiff] belonged. (This second allegation would constitute misconduct not because the lawyers communicated with a potential class action plaintiff personally, but because the communication was misleading.)
Id. at 917. The district court in Ashford Gear stated that “ ‘only the most egregious misconduct’ by class 13 counsel” could “ ‘ever arguably justify denial of class status,’ ” and instead ruled that “the proper sanction for these wrongful acts was discipline by the bar authorities, and that the acts cast no shadow on the adequacy of class counsel to represent the class.” Id.
The Seventh Circuit held that the district court applied the wrong standard and should have instead determined whether “[m]iseonduet by class counsel ... create[d] a serious doubt that counsel [would] represent the
This court, applying the Culver standard finds, based on the record presented by the parties in this case,
Whatever this court’s opinion of counsel’s behavior might be, such behavior does not create a serious doubt that class counsel will represent the class loyally. The plaintiffs attorneys did not breach a promise of confidentiality with the members of the class in Cy’s Crabhouse, or with the members of the class in Ashford Gear, or with the potential members of this class. Instead, the breach was with a third party holding information regarding the illegal behavior of potential defendants. See The Siding and Insulation Co. v. Beachwood Hair Clinic, Inc.,
Additionally, the letter sent to potential class members was not as misleading as the letter sent in Ashford Gear. The defendant argues that, like the letter in Ash-ford Gear, the language in the letter sent to Reliable Money is misleading because it implies that “Reliable Money is a member of a class that has been certified in an already existing lawsuit, and its participation could result in the potential compensation of $1,500.” (Def.’s Mem. in Opp’n 15-16, ECF No. 41.)
The letter at issue in this case was addressed to Fast & Friendly Grocery and stated the following:
Re: Junk Faxes
To Wdiom It May Concern:
*337 My law firm pursues class action lawsuits against companies that send junk faxes in Illinois and elsewhere. Federal law prohibits advertising faxes sent without first obtaining the recipient’s prior express permission or invitation. Through litigation, we enforce this federal law to seek compensation for the recipients of junk faxes and to stop future junk faxes.
During our investigation, we have determined that you are likely to be a class member in one or more of the cases we are pursuing. You might not remember receiving the junk faxes, but if the lawsuit were successful, you would receive compensation (from $500 to $1,500) for each junk fax sent to you.
(Def.’s Resp. to Pl.’s Supp. Br., Ex. O, ECF No. 52-16.) The letter provided the attorney’s contact information and contained the words “Advertising Material” at the bottom of the letter. (Def.’s Resp. to Pl.’s Supp. Br., Ex. O, ECF No. 52-16.)
First, the letter was not addressed to Reliable Money. Instead, it was addressed to Fast & Friendly Grocery. It is therefore unlikely that Reliable Money was misled into believing that it was a member of an already existing class. Second, the letter clearly states “Advertising Material” at the bottom, making any possible deception even more unlikely. I therefore find that the letter, in this case, was not misleading.
When all is said and done, I must be mindful of the purpose of the court’s analysis under Rule 23(a)(4). The purpose is to ensure that the attorneys representing the class will adequately represent those class members who are not actively involved in the case, or may not know that a case exists at all. See Greenfield v. Villager Indus., Inc.,
Based on the discussion above, the court finds that class counsel’s behavior does not create a “serious doubt that counsel will represent the class loyally.” Ashford Gear,
6. Predominance and Superiority
The plaintiff seeks class certification pursuant to Rule 23(b)(3). Subsection (b)(3) requires the plaintiff to show that (1) “questions of law or fact common to class members predominate over any questions affecting only individual members” and (2) “a class
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3).
The plaintiff states that “[i]n this case, no individualized issues are present. Plaintiffs claim is identical to the claims of the other class members. Because each class member is entitled to statutory damages in the same amount, there will be no need for an individualized inquiry on the question of damages.” (Pl.’s Mem. in Support 14, ECF No. 34.)
The court agrees that common issues predominate over any individual issues that may arise. The facts determining the defendant’s liability relate to the transmission of the faxes and do not relate to the individual recipients. The individual issues that the court foresees relate to the need to determine whether some of the recipients gave permission to receive the faxes prior to transmission or whether individual plaintiffs had an established business relationship with the defendant before receiving the fax at issue in this case. However, such issues are minor and can certainly be handled within the framework of a class action. The court therefore finds that the proposed class meets the predominance requirement under Rule 23.
Superiority, however, is a more complеx and contested issue. The plaintiff argues that proceeding as a class “is superior to thousands of individual actions.” (Pl.’s Reply 11, ECF No. 44.) The plaintiff also argues that “[a] class action is the only available method of adjudication that would be fair and efficient” because the small amount of statutory damages per class member and the requirement that “[b]usinesses appear in court only through a licensed attorney,” “would result in a ‘negative value’ for each plaintiff representing itself.” (PL’s Mem. in Support 16, ECF No. 34.)
The defendant argues, however, that a class action is an inferior method of adjudication compared to other available options. Specifically, the defendant points to congressional intent that suсh claims be pursued in small claims court. (Def.’s Mem. in Opp’n 20, ECF No. 41.) McKnight also argues that the plaintiffs counsel’s “breach of a clear promise of confidentiality” or transmission of “countless misleading and factually inaccurate solicitation letters in an effort to find [a] potential class representative” demonstrates that certifying this case as a class action is not superior to individual litigation. (Def.’s Mem. in Opp’n 19-20, ECF No. 41.)
Several courts have addressed whether a class action is a superior method for adjudicating TCPA claims and have reached different results. For example, in Local Baking Prods., Inc. v. Kosher Bagel Munch, Inc.,
However, many courts have found class actions to be an appropriate method of adjudication of TCPA violations. In Green v. Serv. Master On Location Servs. Corp., No. 07 C 4705,
I find that proceeding as a class is superior to litigation of the issues by individuals. Specifically, if the defendant’s liability is proven, then those persons to whom the “junk faxes” were transmitted are entitled to statutory damages of at least $500 рer transmission. Providing evidence of the defendant’s alleged violation of the TCPA, as it relates to this specific class, would be duplicated in each individual lawsuit if the action were not allowed to proceed as a class. This runs counter to the objective of class actions to provide efficiency for the parties and the courts.
Additionally, the court appreciates the congressional intent to provide a simple statutory scheme that allows for individuals to prosecute TCPA violations in small claims courts without the assistance of attorneys. However, like the court in Green, I am persuaded that if Congress intended to preclude Rule 23’s application to TCPA claims, then express language to that effect would have been included in 47 U.S.C. § 227 (which it was not). I therefore find that allowing the lawsuit to proceed as a class action is superi- or to litigation by each individual plaintiff.
IV. CONCLUSION
For the reasons stated above, the court will grant the plaintiffs motion for Rule 23 class certification.
NOW THEREFORE IT IS ORDERED
that the plaintiffs’ motion for Rule 23 class certification be and hereby is GRANTED;
IT IS FURTHER ORDERED that the following class is certified:
All persons who were successfully sent a facsimile on April 6, 2006, or April 7, 2006, offering “20% OFF Cover of Magazines” and “30% OFF Cover of Books” from MSC of Pittsburgh, PA.
IT IS FURTHER ORDERED that Reliable Money Order, Inc. be and hereby is appointed as class representative;
IT IS FURTHER ORDERED that plaintiffs counsel be and hereby is appointed as class counsel;
IT IS FURTHER ORDERED that a status conference will be conducted on April 19, 2012, at 9:30 a.m., in Rоom 242 of the U.S. Courthouse, 517 E. Wisconsin Avenue, Milwaukee, Wisconsin 53202, to discuss with counsel the steps that need to be taken to further process this case to final resolution and judgment.
Notes
. The defendant argues that the class definition should be altered to indicate that a potential class member is someone who actually "received” a fax from the defendant, not merely someone to whom the fax was "successfully sent.” However, as previously stated, the plaintiff need only establish that a fax was successfully sent to establish a violation of the TCPA.
. This is the same alleged misconduct that was addressed in Ashford Gear.
. Kelly refers to Attorney Ryan M. Kelly of Anderson + Wanca, who is also the plaintiff's attorney in this case.
. The court notes that the plaintiff in Ashford Gear “did not respond to Ashford Gear’s petition in the Seventh Circuit because it believed the sole issue raised by the petition for leave to appeal under Fed.R.Civ.P. 23(f) was whether the case was appropriate for immediate, interlocutory appellate review.” (Pl.'s Supp. Br. 2, n. 1, ECF No. 49.) The plaintiff's attorneys state that "the case is now back before Judge Gettleman, and Creative Montessori School!] will submit a more complete record clearly showing that Caroline Abraham did not rely upon any promise from Anderson + Wanca, and that the firm did not mislead the plaintiff.” (Pl.'s Supp. Br. 2-3, n. 1, ECF No. 49.)
. The defendant also suggests that the letter class counsel sent to Reliable Money and potentially hundreds or thousands of other potential plaintiffs may have violated professional responsibility provisions in various states that require suсh letter to be registered prior to being sent. (Def.'s Resp. to Pl.’s Supp. Br. 21, ECF No. 52.) However, in this court’s opinion, failure to register a solicitation letter is insufficient to find that counsel will not adequately protect the interests of the class.
. The defendant mentions briefly that class counsel submitted a $5,000 check to Abraham's attorney, Eric Rubin, which Attorney Rubin returned to class counsel uncashed. (Def.’s Resp. to Pl.’s Supp. Br. 12, ECF No. 52.) Judge Kennelly reviewed the circumstances surrounding the check and found no misconduct, reasoning instead that the attempted payment was most likely related to Abraham’s discoveiy costs, which class counsel had paid to Abraham in the past. Cy’s Crabhouse,