In Dr. Robert L. Meinders D.C., Ltd v. Emery Wilson Corporation, 2016 WL 3402621, at *4-5 (S.D.Ill., 2016), Judge Yandle certified a TCPA blast fax class action. Sterling is a corporation that provides management training and consulting services to entrepreneur and business clients (Doc. 69-8, p. 18). To promote its business, Sterling sends faxes to existing and potential customers promoting its workshop seminars and training programs. . . In 2013, Plaintiff received two faxes from Sterling advertising Sterling seminars in Minneapolis, Minnesota and Chicago, Illinois (Doc. 69-13, pp. 16-21). The faxes did not contain opt-out disclaimers (Id.). There is no evidence that Plaintiff consented to receiving fax advertisements (Doc. 69-6, pp. 164-168). Plaintiff contends that Sterling violated the TCPA, which makes it illegal to send an unsolicited fax advertisement unless (1) the sender and recipient have an established business relationship, (2) the recipient voluntarily made its fax number available through specified means, or (3) the fax ad contained a statutorily compliant notice. Judge Yandle found no impediment to class certification.
Here, the proposed class members claims all arise under the same statute and involve common legal issues. The claims of all class members depend on the resolution of some or all of these key common questions – whether Sterling sent unsolicited fax advertisements in violation of the TCPA; whether Sterling obtained the recipients’ express permission or invitation to send the faxes; whether the recipients received faxes with the necessary opt-out language;5 whether Plaintiff and the other class members are entitled to statutory damages; and whether Sterling’s actions were “willful” or “knowing” under the TCPA and, if so, whether Plaintiff and other class members are entitled to trebled damages. See Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684 (7th Cir. 2013) (class certification is normal in litigation under § 227 because the main questions such as whether a given fax is an advertisement are common to all recipients); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005). Finally, Sterling argues that commonality cannot be established because consent is individualized and cannot be inferred on a class basis. More specifically, Sterling asserts that because no TCPA violation occurred if a fax was sent to an individual who consented to receive it, this Court will have to engage in an individualized inquiry as to whether each class member consented to receive the fax. Factual variations amongst class members’ claims, however, do not necessarily defeat class certification as long as the representatives claims are based on the same course of conduct and legal theory as the class as a whole. De LaFuente v. Stokely–Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Therefore, commonality is satisfied. . . Plaintiff asserts that common issues of law and fact predominate in this action. Sterling vigorously counters that individualized issues regarding whether clients consented to receive fax advertisements will predominate. Sterling’s argument is frequently asserted and rejected in TCPA cases involving fax broadcasting.7 As succinctly summarized in Jamison v. First Credit Services, Inc., 290 F.R.D. 92, 106 (N.D. Ill. 2013), a helpful rule that can be extracted from TCPA cases regarding whether issues of individualized consent predominate over common questions of law or fact is that “individualized consent predominate when a defendant sets forth specific evidence showing that a significant percentage of the putative class consented.” Jamison, 290 F.R.D. at 106-07.
Although Sterling has provided some evidence that class members may have consented to receiving fax advertisements, this evidence is far from overwhelming. That evidence includes the affidavits of twelve clients (out of a class of potential thousands) attesting to providing Sterling prior express consent for fax transmittals and the testimony of two Sterling employees that consent was routinely elicited prior to sending fax transmittals. Sterling also contends that there is no way to determine consent due to lack of record keeping. However, Sterling may not rely on its own failure to obtain and retain records of who consented to receiving fax advertisements in order to defeat class certification in this matter. See Mullins, 795 F.3d at 668 (“[R]efusing to certify on this basis effectively immunizes defendants from liability because they chose not to maintain records of the relevant transactions.”).