Practice Mgmt. Support Servs., Inc. v. Cirque Du Soleil, Inc.

301 F.Supp.3d 840

PRACTICE MANAGEMENT SUPPORT SERVICES, INC., an Illinois corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,

v.CIRQUE DU SOLEIL, INC., Cirque du Soleil (US), Inc., and John Does 1–10, Defendants.

No. 14 C 2032

United States District Court, N.D. Illinois, Eastern Division.

Signed March 12, 2018

Brian J. Wanca, Glenn L. Hara, Ryan M. Kelly, Ross Michael Good, Wallace Cyril Solberg, Anderson & Wanca, Rolling Meadows, IL, Max G. Margulis, Margulis Law Group, Chesterfield, MO, for Plaintiff.

Eric L. Samore, Albert M. Bower, Molly Anne Arranz, Ronald David Balfour, Yesha Sutaria Hoeppner, Smith Amundsen, LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Honorable Thomas M. Durkin, United States District JudgeIn this class action lawsuit, plaintiff Practice Management Support Services, Inc. challenges the alleged practice of defendants Cirque du Soleil, Inc., and Cirque du Soleil (US), Inc., of using a fax broadcasting service to advertise theatrical shows without providing sufficient instructions about how to opt out, in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The eight-year procedural history of this case is set forth in two prior orders. R. 63; R. 116. The parties have litigated a variety of procedural issues in state and federal court, and they have engaged in protracted discovery three times. R. 116 at 2. Currently before the Court is Practice Management's motion for class certification (R. 68). For the reasons explained below, the Court grants that motion in part.¹

Factual Background

Defendants produce theatrical shows worldwide under the "Cirque du Soleil" trade name. In January 2009, one or both of the defendants contracted with a fax broadcasting company called ProFax to market shows to a list of fax numbers purchased from list providers. R. 68–6 at 18–19; R. 68–5 at 15–17; R. 68–8. A single employee of defendants was in charge of communicating with ProFax with respect to all of the fax blasts at issue in this case, and two other employees were responsible for determining what fax target lists would be sent to Profax. R. 68–6 at 41–44. Defendants' employees do not recall calling any companies on the lists to seek permission to send the faxes. R. 68–6 at 46–47; R. 68–5 at 26.

Transmission logs showing precisely to whom faxes were successfully sent by ProFax at defendants' direction no longer exist. ProFax sends its clients transmission logs via email providing the date and time of each transmission and whether it was successful, but that data is deleted in less than six months unless a client requests that it be retained. R. 68–7 at 19–20. ProFax could not find any of the fax transmission logs for defendants' account. Id. Defendants' employee in charge of communicating with ProFax testified that he deleted the transmission logs soon after receiving them because they were "heavy files." R. 68–6 at 31–36, 92.

Practice Management did obtain through discovery in this litigation 21 ProFax invoices associated with defendants' account that show the total number of faxes successfully sent by ProFax on certain dates (as well as the total number of faxes attempted that were not successful). R. 68–4; R. 68–7 at 12–13. The ProFax invoices correspond with 16 different ads for which plaintiffs obtained images during discovery. See R. 68–3; R. 68–4; R. 68–10.² Practice Management also obtained four fax target lists—i.e. , excel spreadsheets showing names, addresses, fax numbers, and other data for fax targets. R. 68–11.

Practice Management's expert Robert Biggerstaff produced a report adding together the number of faxes shown as sent in the ProFax invoices for the 16 ads, calculating a total of 40,146 successfully sent faxes. R. 68–10 at 8–9. Biggerstaff also matched four of the ProFax invoices to the four fax target list excel spreadsheets. R. 68–10 at 8–9. He concluded that a spreadsheet titled "cirRockford.xls" corresponds with the invoice for "Rockford Special Offer," a spreadsheet titled "cirROCKFORD_school.xls" corresponds with the invoice for "Rockford Schools," a spreadsheet titled "List_Chicago_Vaudeville _Faxblast_June 2009" corresponds with the invoice for "Chicago Group Fax," and a spreadsheet titled "List_Colorado.xls" corresponds with the invoice for "Denver Group Fax." Id. at 9.

A large percentage of the entries in three of these spreadsheets appear to be for Illinois businesses and residents. In the "cirRockford.xls" spreadsheet, 3,927 (82%) of the addresses show "IL" as the "PRIMARY_STATE." Id. at 7. In the "cirROCKFORD_school.xls" spreadsheet, 730 (79%) of the addresses show "IL" as the "PRIMARY_STATE." Id. In the "List_Chicago_Vaudeville _Faxblast_June 2009" spreadsheet, 10,869 (94%) of the addresses show "IL" as the "PRIMARY_STATE." Id. In the "List_Colorado.xls" spreadsheet, by contrast, all of the addresses show "CO" as the "PRIMARY_STATE." Id.

The ad sent to Practice Management and attached to the complaint in this case contains the following opt-out notice at the bottom in fine print:

To opt out from future faxes go to www.deletemyfaxnumber.com. Enter pin # 15263 or call 877–284–7878. The recipient may make a request to the sender not to send any future faxes and failure to comply with the request within 30 days is unlawful.

R. 1 at 12; R. 68–7 at 9. Practice Management alleges that this opt-out notice was deficient (although its complaint does not specify why). R. 1 ¶ 19. ProFax retained an opt-out list associated with defendants' account, which is comprised of 935 fax numbers. R. 153 at 4; R. 161 at 3.

Standard

To be certified, a putative class must satisfy the four prerequisites of Federal Rule of Civil Procedure 23(a) : numerosity, commonality, typicality, and adequacy of representation. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The action also must satisfy at least one of the three subsections of Rule 23(b). Id. Here, plaintiffs seek certification under Rule 23(b)(3), which requires a finding that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

"Plaintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements." Messner , 669 F.3d at 811. "The Rule does not set forth a mere pleading standard"; rather, the plaintiff must satisfy Rule 23"through evidentiary proof." Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). "It is sufficient if each disputed requirement has been proven by a preponderance of the evidence." Messner , 669 F.3d at 811. "Such an analysis will frequently entail ‘overlap with the merits of the plaintiff's underlying claim.’ " Comcast , 569 U.S. at 33–34, 133 S.Ct. 1426 (quoting Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ). But "[m]erits questions may be considered ... only to the extent ... that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013).

District courts have "broad discretion" when determining whether a proposed class satisfies Rule 23. Howland v. First Am. Title Ins. Co. , 672 F.3d 525, 528 (7th Cir. 2012) ; see also Dukes, 564 U.S. at 369, 131 S.Ct. 2541 ("[M]ost issues arising under Rule 23... [are] committed in the first instance to the discretion of the district court.").

Discussion

"Class certification is normal" under the TCPA "because the main questions, such as whether a given fax is an advertisement, are common to all recipients." Ira Holtzman, C.P.A. v. Turza , 728 F.3d 682, 683 (7th Cir. 2013). Judges in this district have certified dozens of TCPA fax cases. See R. 68–1 at 11 n.7 (collecting cases). And this case does not implicate the individualized consent issues that have been held to defeat class certification in a number of recent cases applying the Federal Circuit's decision in Bais Yaakov of Spring Valley v. FCC , 852 F.3d 1078, 1083 (D.C. Cir. 2017), cert. denied sub nom. Bais Yaakov of Spring Valley v. F.C.C. , ––– U.S. ––––, 138 S.Ct. 1043, 200 L.Ed.2d 300, 2018 WL 942804 (U.S. Feb. 20, 2018). See, e.g. , Alpha Tech Pet Inc. v. LaGasse, LLC , 2017 WL 5069946, at *4–8 (N.D. Ill. Nov. 3, 2017) ; Brodsky v. HumanaDental Ins. Co. , 269 F.Supp.3d 841, 849–51 (N.D. Ill. 2017).

Although defendants pull out all the stops, including in several motions to cite supplemental authority that are in reality lengthy additions to their class certification opposition, they do not raise any arguments that differentiate this case sufficiently from the many other TCPA cases in which class certification has been granted under this Circuit's law. The Court does, however, find that the Supreme Court's recent ruling in Bristol–Myers Squibb Co. v. Superior Court of California, San Francisco Cty. , ––– U.S. ––––, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017) —addressed in defendants' third motion for leave to file supplemental authority (R. 150)—prevents this Court from exercising personal jurisdiction over non-Illinois-resident class members.

I. Class Scope

As a threshold matter, defendants take issue with what they characterize as Practice Management's belated attempt to revise and broaden the scope of its class claims. They say that class certification should be denied outright on this basis.

Practice Management's complaint identified the following class:

All persons who (1) on or after April 19, 2007, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendants, (3) from whom Defendants did not obtain prior express permission or invitation to send those faxes, (4) with whom Defendants did not

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