MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin, United States District Judge.
Alpha Tech Pet, Inc., alleges that Lagasse LLC, Essendant Management Services LLC, Essendant Co., United Stationers, Inc., and John Does 1-10 ("Defendants") sent Alpha Tech eight unsolicited facsimile advertisements in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. § 227. R. 1. In addition to its individual claims, Alpha Tech also brings this action on behalf of all others similarly situated, and moves to have the Court certify a class of plaintiffs pursuant to Federal Rules of Civil Procedure 23(a), (b)(3) and (g). R. 3.
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While "detailed factual allegations"
Alpha Tech alleges that Defendants sent eight unsolicited faxes to Alpha Tech between January 12, 2012 and April 26, 2012, R. 1 ¶¶ 13-15, copies of which it attached to its complaint. R. 1-1. The following is a list of the faxes by date, with a short description of the content of each fax:
All eight of the faxes include the Lagasse-Sweet logo. R. 1-1 at 2-9. All eight of the faxes state, "If you have received this fax in error, please accept our apologies and call toll free 877.385.4440 to be removed from our list." Id.
Alpha Tech alleges that Defendants sent the faxes without the statutorily mandated "opt-out" message. R. 1 ¶¶ 18, 29. Alpha Tech also alleges that the faxes caused Alpha Tech to lose paper and toner in printing the faxes, and cost Alpha Tech employee time, as the employees reviewed and routed the faxes. Id. ¶ 36. Alpha Tech alleges that it "had not invited or given permission to Defendants to send the faxes." Id. ¶ 15.
Alpha Tech also seeks certification the following class of individuals:
R. 3 at 1.
I. Motion to Dismiss
The TCPA prohibits the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C). An "unsolicited advertisement" is "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." 47 U.S.C. § 227(a)(5). Federal regulations provide that the "term advertisement means any material advertising the commercial availability or quality of any property, goods, or services." 47 C.F.R. § 64.1200(f)(1).
Defendants argue that Alpha Tech has failed to state a clam with respect to four of the eight faxes because they do not constitute advertisements.
Here, all four faxes Defendants contest are plausibly advertisements. The March 15 and February 15 faxes provide the prices for certain goods and encourage customers to investigate the availability of further products on Defendants' website. These faxes can plausibly be characterized as "advertising the commercial availability or quality of ... goods." 47 U.S.C. § 227(a)(5).
The April 25 and 26 faxes do not mention specific goods, but encourage "customers" to place orders online or by phone while Defendants' email system was not working. Simply by being addressed to "customers" the faxes can be plausibly characterized as advertisements for goods, because a customer is "someone who buys goods." See Merriam-Webster Dictionary online (www.merriam-webster.com) (visited on Sept. 7, 2016). Additionally, although the faxes state that their purpose was to inform the recipients regarding the functionality of Defendants' email system, the purpose of providing that information was to enable the "customers" who received the faxes to purchase goods from Defendants. See N.B. Indus. v. Wells Fargo & Co., 2010 WL 4939970, at *6 (N.D.Cal. Nov. 30, 2010) (courts should look past "pretext" in determining whether a fax is an advertisement covered by the TPCA). This is apparent because the faxes also provide information about alternative means of purchasing goods, i.e., on the internet or by phone. Such an "invitation" to do business is plausibly an advertisement. See Brodsky v. HumanaDental Ins. Co., 2014 WL 2780089, at *7 (N.D.Ill. June 12, 2014); Mussat v. Power Liens, LLC, 2014 WL 3610991, at *2 (N.D.Ill. July 21, 2014) (an "invitation" or "offer to make use of" services is plausibly an advertisement).
Defendants cite an FCC ruling to point out that "FCC rules emphasize a distinction between advertising faxes versus informational faxes, noting that `messages that do not promote a commercial product or service ... are not unsolicited advertisements under the TCPA.'" R. 20 at 6 (quoting In re Matter of Rules & Reg's Implementing the TCPA of 1991, 21 FCC Rcd. 3787, 3810 (Apr. 6, 2006)). On the basis of this FCC ruling, Defendants argue that the four faxes at issue are "informational" in that they inform the recipient about Defendants' prices and the functionality of Defendants' email system. R. 20 at 8. Defendants contend that to the extent the faxes contain advertising, it is "`incidental'" and "`does not convert the entire communication into an advertisement'" for purposes of the TCPA. Id. at 7 (quoting 21 FCC Rcd. at 3814).
As an initial matter, the FCC ruling Defendants rely on "discusses the meaning of `informational communication,' a phrase that does not appear in [the statute or the federal regulations]," but is the "explanation the [FCC] gave when adopting the regulation." Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 687-88 (7th Cir.2013). The Seventh Circuit has held that this is "a species of untethered legislative history," and "although legislative history may assist in understanding an ambiguous text, a freestanding declaration untied to an adopted text must be ignored." Id. at 688. For this reason, the Seventh Circuit did not use the FCC's interpretation of the statute and regulation in analyzing whether a fax was an "advertisement," but simply applied the statutory and regulatory definition of "commercial availability." Id. at 687. As discussed, that definition plausibly encompasses the faxes at issue here.
Even if the Court was bound to follow the FCC's ruling,
21 FCC Rcd. at 3814 and n. 187. Based on Alpha Tech's allegations and what the Court can glean from the face of the four faxes at issue, the faxes do not fit the definition of "informational communication" the FCC exempts from the scope of the TCPA. The faxes are not alleged to be "industry news articles, legislative updates, or employee benefit information." Neither are they alleged to be "issued on a regular schedule" or "directed to ... paid subscribers or to recipients who have initiated membership in the organization that sent the communication." Rather, the faxes at issue are alleged, and appear, to be random communications sent with the intent to encourage "customers" to purchase goods from Defendants.
Furthermore, Defendants' reliance on the FCC's exemption of "incidental advertising" is misplaced. The FCC ruling refers to an "incidental advertisement contained in a newsletter." Nothing about Alpha Tech's allegations or the face of the faxes in question would allow the Court to plausibly characterize the faxes as "newsletters." Thus, the FCC ruling, even if it was binding on this Court, does not help Defendants at this stage of the proceedings.
Defendants also cite the FCC ruling to argue that the February 15 and March 15 faxes are "price lists [which are] transactional faxes that are not actionable under the TCPA." R. 20 at 8. The FCC ruling, however, applies not to price lists generally, but to a "price list sent from a wholesaler to a distributor ... for the purpose of communicating the terms on which a transaction has already occurred." 21 FCC Rcd. at 3813. By contrast, "messages that advertise the commercial availability ... of goods or services, but purport to be `price sheets' ... in order to evade TCPA rules, are nevertheless unsolicited advertisements, if not sent for the purpose of facilitating, completing, or confirming an ongoing transaction." Id. and n.180. Neither Alpha Tech's allegations nor the facial content of the February 15 and March 15 faxes make it plausible that the faxes meet the FCC's standards for the price list exemption.
Moreover, the elements of the FCC's description of an "informational communication" call for a fact intensive examination of the circumstances in which a particular fax is sent, and such a determination is not appropriate at this stage of the proceedings. It might be that Defendants send faxes like these on a regular basis, but there is nothing in the record to suggest that. It might be that Alpha Tech has some preexisting relationship with Defendants that would authorize Defendants to send these faxes, but that too is not reflected in the current record. To the extent the FCC ruling is authoritative (which the Seventh Circuit has held it is not) and might save the faxes at issue on this motion (which does not appear to be the case from the Court's preliminary review of the faxes' content), this cannot be determined without discovery into the kind of circumstances described by the FCC's ruling.
II. Class Allegations
Defendants also have moved to strike Alpha Tech's class allegations, because (1) the "proposed class is unascertainable and impermissibly `fail-safe,'" R. 20 at 10, and (2) "individualized issues preclude the finding of commonality and predominance." Id. at 12. "Courts in this district have held that a motion to strike class allegations ... can be an appropriate device to determine whether a case will proceed as a class action." Bohn v. Boiron, Inc., 2013 WL 3975126, at *5 (N.D.Ill. Aug. 1, 2013) (quoting Valentine v. WideOpen W. Fin., 288 F.R.D. 407, 414 (N.D.Ill. 2012)). Although Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter," "[c]ourts in this [d]istrict ... evaluate motions to strike class allegations under Rule 23, not Rule 12(f)." Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 294 (N.D.Ill. Mar. 17, 2014) (citing cases).
Defendants contend that Alpha Tech's class definition is not "ascertainable" because it is a "fail-safe" class. Application of "Rule 23 requires that a class be defined ... clearly and based on objective criteria." Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir.2015); see Fed. R. Civ. P. 23(c)(3)(B) ("[T]he judgment in a class action must for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed ... and whom the court finds to be class members."). This requirement is known as "ascertainability." Mullins, 795 F.3d at 659. One of the "common problems that have caused plaintiffs to flunk this requirement" is "classes that are defined in terms of success on the merits — so-called `fail-safe classes.'" Id. at 659-60. "Defining the class in terms of success on the merits is a problem because `a class member either wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment.'" Id. at 660 (quoting Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 825 (7th Cir.2012)). "This raises an obvious fairness problem for the defendant: the defendant is forced to defend against the class, but if a plaintiff loses, she drops out and can subject the defendant to another round of litigation." Mullins, 795 F.3d at 660 (7th Cir.2015) (citing Erin L. Geller, Note, The Fail-Safe Class as an Independent Bar to Class Certification, 81 Fordham L. Rev. 2769 (2013)).
In cases alleging statutory injuries, like the injury alleged in this case under the TCPA, it can be tempting for a plaintiff to define its class in terms of the statutory elements that establish liability. Many
By contrast, for example, tort actions concern injuries to persons or property that are considered harmful regardless of a legislature's intent. No legislature needed to pass a law for the consumer of a defective product to collect damages. Since the injury exists apart from a statute, the legal elements that determine liability are independent of the injury for which the plaintiff seeks relief. This clearer separation of the particular circumstances of the plaintiff's injury and the elements that establish liability makes it easier for the plaintiff in a tort action to define a class properly in terms of the circumstances of the injury as opposed to improperly defining the class in terms of liability. For instance, a plaintiff in a products liability case is unlikely to define the class as those who purchased a "defective product" from the defendant manufacturer. This definition of course is fail-safe because it is couched in terms of liability — it is the "defective" nature of a product that determines liability. Rather, because a plaintiff in a products liability case is focused on the particular product (or part of a product) that caused the injury at issue, the plaintiff is much more likely to define the class as those who purchased "Product X" or any product containing "Part Y." These definitions leave open the question of liability and avoid the fail-safe trap.
Here, Alpha Tech alleges a class defined as those who received fax advertisements from Defendants (1) for which Defendants did not secure "prior express permission" to send, or (2) in which Defendants failed to "display a proper opt-out notice." With its references to "prior express permission" and "opt-out notice," this class definition uses the terms that define the scope of liability under the TCPA. The TCPA only prohibits faxed advertisements that are "unsolicited," and the TCPA defines an "unsolicited advertisement" as one sent without "prior express invitation or permission." 47 U.S.C. § 227(a)(5). Nevertheless, even a fax sent with permission must include a statutorily described "opt-out notice" to comply with federal regulations. 47 C.F.R. § 64.1200(a)(4)(iv); see also Nack v. Walburg, 715 F.3d 680, 684 (8th Cir.2013), cert denied ___ U.S. ___, 134 S.Ct. 1539, 188 L.Ed.2d 581 (Mar. 24, 2014); Brodsky v. HumanaDental Insurance Company, 2014 WL 4813147, at *4 (N.D.Ill. Sep 29, 2014). Further, the TCPA also exempts from its prohibition on "unsolicited advertisements" a fax sent to a recipient with whom the sender has an "established business relationship" as long as the fax includes the statutorily described "opt-out notice."
Alpha Tech's claims center on whether Defendants included a proper opt-out notice on their faxes. Largely because the TCPA requires that faxed advertisements include an opt-out notice regardless of whether the sender received "prior express permission" from, or had an "established business relationship" with, the recipient, Alpha Tech concedes that "prior express permission" is irrelevant to its claims. See R. 26 at 15 ("The Court will not be required to delve into issues of prior express permission or EBR in this case because the class covers faxes lacking compliant opt-out notice."). Since "prior express permission" is irrelevant to Alpha Tech's claims, it should not be an element of the class definition, and the Court strikes that portion of the definition. With "prior express permission" stricken, the only remaining issue with respect to the ascertainability of Alpha Tech's class definition,
Presumably, Alpha Tech included the failure to "display a proper opt-out notice" as an element in its class definition, because it would like its class to include anyone who received a fax from Defendants without a proper opt-out notice. But whether Defendants included a proper optout notice on their faxes is the primary question the answer to which will determine Defendants' liability in this case.
Analogy to the hypothetical products liability class described earlier will help elucidate the Court's reasoning. The products liability plaintiff avoids a fail-safe class definition by focusing on the particular factual circumstances that caused the injury at issue. A proper products liability class is not defined as anyone who purchased a general "defective product," but those who purchased "Product X," or a product with "Part Y," in particular. By analogy in this case the proper class is not those who received a fax lacking a proper opt-out notice, but those who received the particular faxes Alpha Tech received, or any faxes that contained the purported opt-out language that Defendants included on the faxes Alpha Tech received, and which Alpha Tech alleges is insufficient under the terms of the TCPA. Thus, the Court redefines the class definition as follows:
This definition avoids the problem of a fail-safe class because it is grounded in the particular factual circumstances that allegedly led to Alpha Tech's injury. Discovery might reveal a basis to further refine this definition or to dismiss the class allegations altogether. But the definition the Court has crafted will suffice for the time being.
B. Commonality and Predominance
Defendants also argue that Alpha Tech's class allegations should be stricken because "courts have repeatedly found that the individualized issues of prior express invitation or permission to receive fax advertisements demonstrates the absence of commonality and predominance." R. 20 at 13. But as discussed, it may not be necessary to examine whether Alpha Tech or any members of the class gave permission to Defendants to send them faxes. And even if permission does become an issue with respect to an affirmative defense, permission is not always an individualized issue. See, e.g., Wolfkiel, 303 F.R.D. at 294 ("Courts have held ... that the issue of individual consent could be addressed on a class-wide basis where the source of the contact information for all of the recipients of unwanted faxes was a single `leads' list compiled by a third party."); see also Green v. Serv. Master On Location Servs., 2009 WL 1810769, at *2 (N.D.Ill. June 22, 2009); Hinman v. M&M Rental Ctr., 545 F.Supp.2d 802, 806-07 (N.D.Ill.2008); Gene & Gene, 541 F.3d 318 (5th Cir.2008). Therefore, Defendants motion to strike Alpha Tech's class allegations for failure to allege commonality and predominance is denied.
For the foregoing reasons, Defendants' motion to dismiss and strike, R. 19, is denied. The class definition is redefined in accordance with this order. The Court also rejects Defendants' argument that Alpha Tech's motion for class certification should be denied as premature. Despite the Seventh Circuit's decision in Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir.2015), which overruled the reasoning in Damasco v. Clearwire Corp., 662 F.3d 891, 895 (7th Cir.2011), requiring placeholder motions for class certification, the Supreme Court's decision in Campbell-Ewald Co. v. Gomez has revived the potential need for place holder motions in this circuit. ___ U.S. ___, 136 S.Ct. 663, 672, 193 L.Ed.2d 571 (2016) ("We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."). Alpha Tech's motion for class certification is entered and continued until a more appropriate point in the proceedings.
Defendants also rely on other cases in which there was no dispute that the fax was sent to "existing customers" or "subscribers." R. 27 at 5 (citing Grind Lap Servs., Inc. v. UBM LLC, 2015 WL 6955484, at *1 (N.D.Ill. Nov. 10, 2015); Physicians HealthSource, Inc. v. MultiPlan Servs., Corp., 2013 WL 5299134, at *1-2 (D.Mass. Sept. 18, 2013)). Those cases are inapposite because Alpha Tech makes allegations to the contrary.