Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: Class certification denied in TCPA action against restaurant, (Feb 17, 2015)

By Linda O’Brien, J.D., LL.M.

The federal district court in Chicago has denied a motion for class certification on a chiropractor’s Telephone Consumer Protection Act (TCPA) claim against a pizza restaurant owner for sending faxed advertisements promoting his restaurant (Rosen Family Chiropractic, S.C. v. Chi-Town Pizza on Division Street, Inc., February 13, 2015, Tharp, J.).

Mike Peles owned and operated two entities, Chi-Town Pizza on Division and Chi-Town Pizza Express. In October 2009, Peles hired a marketer, which sent over 3,000 facsimile advertisements to at least 106 fax numbers on behalf of Chi-Town Pizza on Division. Rosen Family Chiropractic received an unsolicited fax advertisement and filed suit against Division and Express, alleging violations of the TCPA and Illinois Consumer Fraud Act. Rosen moved to certify a class of plaintiffs with respect to the TCPA claim.

Rosen contended that his claim arose from the same course of conduct that gives rise to claims of other class members and that the defendants’ use of a fax broadcaster to send junk fax advertisements failed to provide the required opt-out notice. Rosen sought to certify a class of plaintiffs whose fax numbers were listed on the marketer’s fax log.

All classes must satisfy the Federal Rule of Civil Procedure 23(a) requirements of numerosity, common questions of law or fact, typicality of claims or defenses, and adequacy of representation. As class representative, Rosen’s claims must be typical of the claims of the putative class, the court explained.

In denying Rosen’s request for class certification, the court noted that the marketer’s fax log did not include Rosen’s fax number. Also, the template used by the marketer to send faxes to numbers on the fax log differed in critical aspects from the fax on which Rosen’s individual claim was based. Specifically, the template used by the marketer to numbers on the fax log did not mention Division’s catering services and did not promote or describe any products or services that would be provided by Division.

According to the court, Rosen’s argument that the template promoted the defendant’s catering services was unsupported. The fax Rosen received stated “we also do office catering” and listed a website for catering; however, the template made no mention of catering services and did not provide a website for catering. Moreover, Rosen failed to explain how the website link for Chi-Town Pizza promoted Division’s or Express’ catering services, since the website link was inactive.

Rosen’s contention that his fax must have come from the marketer, since it was the only fax broadcaster that Pele hired was also rejected. In light of the marketer’s testimony that it did not send any fax to Rosen, along with the evidence that the fax log did not include Rosen’s number, the court could not determine that Rosen’s fax came from the marketer or that its claim was typical of the claims of the putative class whose faxes did come from the marketer.

Finally, Rosen did not meet the numerosity requirement of Rule 23(a). He alleged that there were at least 106 members of the class as shown by the marketer’s fax log. However, in the court’s view, there were no members of the putative class, since none of the fax recipients recorded in the fax log received an advertisement sent on behalf of Division or promoted its catering services. Even if each recipient on the fax log had a claim against Division, Rosen’s fax number was not included on the fax log.

The case is No. 11 C 6753.

Attorneys: Keith James Keogh (Keogh Law, Ltd.) for Rosen Family Chiropractic, SC. Mark B. Ruda (Condon & Cook) for Chi-Town Pizza on Division Street, Inc.

Companies: Rosen Family Chiropractic, SC; Chi-Town Pizza on Division Street, Inc.

Cases: Privacy ConsumerProtection IllinoisNews