CE Design Ltd. v. C & T Pizza, Inc.

• Decision Date: 08 May 2015
• Docket Number: No. 1–13–1465.,1–13–1465.
• Citation: 32 N.E.3d 150
• Parties: CE DESIGN LTD., an Illinois Corporation, Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff–Appellee, v. C & T PIZZA, INC., Defendant–Appellant.
• Court: United States Appellate Court of Illinois

32 N.E.3d 150

CE DESIGN LTD., an Illinois Corporation, Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff–Appellee

v.C & T PIZZA, INC., Defendant–Appellant.

No. 1–13–1465.

Appellate Court of Illinois, First District, Sixth Division.

May 8, 2015.

Rehearing Denied June 4, 2015.

James K. Borcia and Ryan Taylor, both of Tressler LLP, of Chicago, for appellant.

Phillip A. Bock, Robert M. Hatch, and Jonathan B. Piper, all of Bock & Hatch LLC, of Chicago, and Brian J. Wanca, of Anderson & Wanca, of Rolling Meadows, for appellee.

OPINION

Justice HALL delivered the judgment of the court, with opinion.

¶ 1 In this interlocutory appeal, defendant C & T Pizza, Inc., appeals a circuit court order granting plaintiff CE Design Ltd., class certification in an action alleging, inter alia, violation of the federal Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227(b)(1)(C) (2006) ), which makes it unlawful to “use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” Defendant raises several arguments as to why it believes the circuit court abused its discretion in certifying the class. We address the arguments in turn and find no merit in them.

¶ 2 BACKGROUND

¶ 3 Defendant C & T Pizza, Inc., doing business as Great Chicago Pizza, is a small company operating a pizza delivery restaurant in Schaumburg, Illinois. In March 2006, a fax broadcaster doing business as Business to Business Solutions (B2B) sent a fax to defendant advertising its services. B2B is a company based in New York and run by Caroline Abraham, who works with a Romanian company known as Macaw (also Maxileads), to send fax advertisements in the United States. See CE Design Ltd. v. Cy's Crabhouse North, Inc., 259 F.R.D. 135, 137 (N.D.Ill.2009). Defendant's owner, Joseph Cianciolo, responded to B2B's advertisement and ultimately hired the company to advertise his Pizza business.

¶ 4 Cianciolo consulted with B2B to create a fax advertisement and filled out a document from B2B with information and details about his pizza business. B2B took the information provided by Cianciolo and created an advertisement for the business. Defendant paid B2B $268 to send out 5,000 fax advertisements. B2B planned on transmitting the fax advertisements to zip codes and area codes near Cianciolo's pizza business. On May 4, 2006, B2B faxed defendant's advertisement to 2,765 fax numbers, of which 1,935 were successfully transmitted. The next day, B2B faxed defendant's advertisement to 2,729 fax numbers, of which 1,893 were successfully transmitted.

¶ 5 Plaintiff CE Design Ltd., received faxes on both of these days. Plaintiff is a small civil engineering firm based in the Chicago area that engages in plaintiff class-action litigation involving the TCPA. See CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 723–24 (7th Cir.2011) ; CE Design, Ltd. v. Cy's Crab House North, Inc., 731 F.3d 725, 726 (7th Cir.2013).

¶ 6 In December 2006, plaintiff filed suit against defendant, and Cianciolo and his wife Fran Cianciolo, seeking statutory damages under the TCPA, the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 2006) ), and for conversion. Plaintiff also filed a motion for class certification. In April 2013, the circuit court granted plaintiff's motion for class certification. The court issued a memorandum opinion and order certifying the following class:

“All persons who, on May 4, 2006 or May 5, 2006, were sent a facsimile offering ‘Pizza–Pasta–Deli’ from ‘Great Chicago’ in Schaumburg, IL, and identifying a ‘Remove Hotline’ telephone number of 718–360–0971, without express consent and without a prior established business relationship.”

¶ 7 Defendant filed a petition for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(8) (eff. Feb. 16, 2011), which our court granted, and this interlocutory appeal followed.

¶ 8 ANALYSIS

¶ 9 The basic purpose of a class action is the efficiency and economy of litigation. See Miner v. Gillette Co., 87 Ill.2d 7, 14, 56 Ill.Dec. 886, 428 N.E.2d 478 (1981) (purpose of a class action suit is to allow a representative party to pursue the claims of a large number of persons with like claims). A trial court has broad discretion in determining whether a proposed class meets the requirements for class certification. Ramirez v. Midway Moving & Storage, Inc., 378 Ill.App.3d 51, 53, 316 Ill.Dec. 917, 880 N.E.2d 653 (2007). In determining whether to certify a proposed class, the trial court accepts the allegations of the complaint as true and should err in favor of maintaining class certification (Ramirez v. Midway Moving & Storage, Inc., 378 Ill.App.3d 51, 53, 316 Ill.Dec. 917, 880 N.E.2d 653 (2007) ), but should avoid deciding the underlying merits of the case or resolving unsettled legal questions (Cruz v. Unilock Chicago, Inc., 383 Ill.App.3d 752, 775, 322 Ill.Dec. 831, 892 N.E.2d 78 (2008) ).

¶ 10 Section 2–801 of the Illinois Code of Civil Procedure (Code) sets forth the prerequisites needed to maintain a class action. 735 ILCS 5/2–801 (West 2006). Pursuant to section 2–801 of the Code, the trial court may certify a class if the proponent establishes the following prerequisites: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of fact or law common to the class, which questions predominate over any questions affecting only individual members; (3) the representative parties will fairly and adequately protect the interest of the class; and (4) the class action is an appropriate method for the fair and efficient adjudication of the controversy. 735 ILCS 5/2–801 (West 2006). These prerequisites are generally referred to as numerosity, commonality, adequacy of representation, and appropriateness. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.2d 100, 125, 296 Ill.Dec. 448, 835 N.E.2d 801 (2005). The party seeking class certification bears the burden of establishing all four prerequisites. Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill.2d 158, 167, 298 Ill.Dec. 499, 840 N.E.2d 269 (2005).

¶ 11 Defendant first raises several arguments as to why it believes Plaintiff failed to satisfy its burden of demonstrating that questions of law or fact common to class members predominate over questions affecting only individual members. Defendant argues that in order for a putative class member to be entitled to damages for a violation of the TCPA, the plaintiff must prove that each class member actually received the fax ad, which defendant maintains is an individual issue of fact. This argument is meritless.

¶ 12 The TCPA makes it unlawful to “send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). It does not mention “receipt” as an element. See, e.g., Hinman v. M & M Rental Center, Inc., 596 F.Supp.2d 1152, 1159 (N.D.Ill.2009) (“On its face, the statute prohibit[s] the sending of unsolicited fax advertisements and make[s] no reference at all to receipt, much less to printing.” (Emphasis in original.)). Moreover, even assuming that proof of receipt was required, B2B's fax logs show exactly who received the fax ads and detail the successful transmissions and those that were unsuccessful. See, e.g., CE Design Ltd. v. Cy's Crabhouse North, Inc.,

259 F.R.D. 135, 142 (N.D.Ill.2009) (B2B's fax logs indicating successful transmissions sufficient evidence of proof of receipt).

¶ 13 Defendant next contends that individualized questions predominate because it is unknown if any of the alleged fax recipients had previously consented to receive the fax ads or were in an established business relationship with defendant. Fax advertisements are not prohibited if the unsolicited advertisement is “from a sender with an established business relationship with the recipient.” 47 U.S.C. § 227(b)(1)(C)(i). Defendant has not presented any evidence showing the fax transmissions were authorized by either prior consent or pursuant to an established business relationship. Hypothetical arguments regarding whether some of the class members either consented to receive the fax ads or had an existing business relationship with defendant are not sufficient to preclude class certification. See Ballard RN Center, Inc. v. Kohll's Pharmacy & Homecare, Inc., 2014 IL App (1st) 131543, ¶ 27, 387 Ill.Dec. 255, 22 N.E.3d 137.

¶ 14 Defendant next argues for the first time on appeal that only the owners of the fax machines who received the unsolicited fax ads at issue have standing to assert a claim under the TCPA and therefore plaintiff would have to identify these owners in order to determine who would be a member of any of the classes. As an initial matter, we find this argument has been forfeited because defendant failed to raise it before the trial court. See Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 536, 215 Ill.Dec. 108, 662 N.E.2d 1248 (1996) (an issue not presented to the trial court is forfeited and may not be raised for the first time on appeal). Forfeiture aside, defendant's argument fails on the merits. “It is not necessary that the class representative name the specific individuals who are possibly members of the class.” Hayna v. Arby's, Inc., 99 Ill.App.3d 700, 710–11, 55 Ill.Dec. 1, 425 N.E.2d 1174 (1981). Moreover, plaintiff has a list of every fax number to which defendant's faxes were sent, showing exactly when they were sent. Therefore, the class is sufficiently ascertainable.

¶ 15 Defendant next contends that the plaintiff is not an adequate class representative. We do not believe the trial court abused its discretion in finding otherwise. In determining the adequacy of representation, the trial court must examine the adequacy of the named class representative and its counsel. Clark v. TAP Pharmaceutical Products, Inc., 343 Ill.App.3d 538, 551–52, 278 Ill.Dec. 276, 798 N.E.2d 123 (2003). “ ‘The purpose of the...