Travel 100 Group v. Mediterranean Shipping

• Decision Date: 30 May 2008
• Docket Number: No. 1-06-3744.,1-06-3744.
• Citation: 889 N.E.2d 781
• Parties: TRAVEL 100 GROUP, INC., on Behalf of Itself and All Others Similarly Situated, Plaintiff-Appellant, v. MEDITERRANEAN SHIPPING COMPANY (USA) INC., d/b/a MSC Cruises, a Corporation Organized Under the Laws of the State of New York, Defendant-Appellee (Mediterranean Shipping Company (USA) Inc., Third-Party Plaintiff; Captaris, Inc., Third-Party Defendant).
• Court: United States Appellate Court of Illinois

889 N.E.2d 781

TRAVEL 100 GROUP, INC., on Behalf of Itself and All Others Similarly Situated, Plaintiff-Appellant, v. MEDITERRANEAN SHIPPING COMPANY (USA) INC., d/b/a MSC Cruises, a Corporation Organized Under the Laws of the State of New York, Defendant-Appellee (Mediterranean Shipping Company (USA) Inc., Third-Party Plaintiff Captaris, Inc., Third-Party Defendant).

No. 1-06-3744.

Appellate Court of Illinois, First District, Fifth Division.

May 30, 2008.

Barnow and Associates, P.C., Chicago, IL (Ben Barnow, Sharon Harris and Erich Schork, of counsel); William J. Harte, Ltd, Chicago, IL (William J. Harte, of counsel); Stein & Bogot Ltd., Chicago, IL (Robert J. Stein III, of counsel); and Margulis Law Group, Chesterfield, MO (Max Margulis, of counsel), for Appellant.

Locke Lord Bissell & Liddell LLP, Chicago, IL (Albert E. Fowerbaugh, Jr., Hugh S. Balsam, Michael G. Salemi, of counsel), for Appellee.

Justice GALLAGHER delivered the opinion of the court:

Plaintiff Travel 100 Group, Inc., appeals the circuit court's entry of summary judgment for defendant Mediterranean Shipping Company (USA), Inc., (MSC) on Travel 100's complaint seeking damages under the Telephone Consumer Protection Act of 1991 (the TCPA) (47 U.S.C. § 227 (2000)) for advertisements sent to Travel 100 by facsimile. For the reasons that follow, we affirm.

BACKGROUND

This appeal involves the widespread practice of sending advertisements to the fax machines of businesses and consumers, who often view these documents as the more modern equivalent to "junk mail." This method of distribution became prevalent in the last 15 years as a less expensive alternative to regular mail, especially because the cost of printing the advertisement necessarily is borne by the recipient.

At the time of this litigation, Travel 100 Group operated travel agencies in Chicago and Kenilworth, Illinois. On July 29, 2003, Travel 100 brought a class action lawsuit against MSC, alleging that MSC sent or was responsible for sending an unsolicited advertisement by fax on or around June 24, 2003, to Travel 100 and other members of the class as "part of a mass broadcast of unauthorized faxes." Travel 100 asserted that by sending such advertisements by fax, the documents were printed by using the paper and toner of Travel 100 and other class members, converting those resources for MSC's benefit and shifting to the recipients the cost of printing the messages. Furthermore, Travel 100 stated it could not use its fax line while receiving the ad.

Attached to the complaint was a copy of the faxed advertisement describing "2003-2004 Winter Cruises: 7 Nights [sic] South America Cruises from $640 per person." The single-page advertisement lists dates, destinations and prices for various trips, broken down by deck and type of cabin. The bottom of the page states "MSC Italian Cruises" with a telephone number, fax number and Web site address. At the top of the page is a line stating: "If you no longer wish to receive faxes, please call (800) 769-6921."

In response to Travel 100's complaint, defendant MSC filed a third-party complaint against, among others, Captaris, Inc., the company that marketed MSC cruises through its MediaLinq Services division, which provides high volume fax broadcast services. MSC stated that Captaris obtained the list of fax recipients from Northstar Travel Media (Northstar), which owned the Travel-Edge Database.

MSC and the third-party defendants moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2004)). The defendants argued that Travel 100 had been a member of the International Airlines Travel Agent Network (IATAN) since 1995 and routinely had supplied its contact information to IATAN and other entities to enable airlines, hotels, cruise lines such as MSC, and other travel suppliers to direct information to Travel 100 about availability and promotions.

The defendants contended that Travel 100 provided IATAN with its contact information, including its fax number, and agreed to the inclusion of that information in IATAN's membership database. IATAN then licensed its database for use by NFO Plog Research, Inc. (Plog), the company that compiled the Travel-Edge Database. Plog and its assets, including the Travel-Edge Database, subsequently were purchased by Northstar.

In response to Travel 100's assertion that it received 93 faxes between January 3, 2001, and July 22, 2003, MSC raised the affirmative defenses of laches and estoppel. MSC pointed out that Travel 100 never contacted the toll-free phone number listed on the faxes from MSC to request that it not be faxed advertisements about MSC cruises. MSC further asserted that Travel 100 did not inform IATAN until May 2005 that it did not want to receive promotional faxes and that Travel 100's request only included the fax number of the Kenilworth office. As affirmative defenses, MSC claimed that Travel 100's damages were inconsequential because its actual cost of receiving each fax was approximately 20 cents, and MSC challenged the constitutionality of the TCPA as violative of due process.

On September 29, 2006, the circuit court granted summary judgment in favor of MSC and the third-party defendants, and Travel 100 now appeals. The other third-party defendants are not parties to this appeal.

ANALYSIS

Travel 100 argues that the circuit court erred in granting summary judgment because the record raises a genuine issue of material fact as to whether Travel 100 agreed to receive advertisements from MSC and other travel carriers by fax.

The TCPA prohibits the sending of an unsolicited advertisement to a telephone facsimile machine. 47 U.S.C. § 227(b)(1)(C) (2000). An unsolicited advertisement is defined as "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)(4) (2000). The TCPA provides for monetary damage for each violation in the amount of the party's actual monetary loss or $500, whichever is greater. 47 U.S.C. § 227(b)(3)(B) (2000). Upon a finding by the court that the defendant willfully or knowingly violated the Act, the court may award treble damages. 47 U.S.C. § 227(b)(3) (2000).¹

Travel 100 does not contest its membership in IATAN or dispute that it provided contact information, including its fax number, for inclusion in IATAN's database. Travel 100 maintains that although it "occasionally verified its contact information as requested by IATAN," the documents did not grant Travel 100's express permission to receive advertisements from third parties such as MSC or to receive those ads by fax.

I. Affidavit of Stacy Fisher

Before reviewing the circuit court's grant of summary judgment, we first consider the affidavit of Travel 100 office manager Stacy Fisher describing a questionnaire that Fisher completed and returned to Plog/Northstar in December 2002. Travel 100 moved to strike Fisher's affidavit, contending it was obtained in violation of Illinois Supreme Court Rule 206 (188 Ill.2d R. 206). The circuit court stated that its grant of summary judgment for defendants did not rely on Fisher's testimony. However, the circuit court discussed Travel 100's motion to strike the affidavit and addressed the manner in which the affidavit was procured, concluding that counsel for defendants did not violate the discovery rules.

Evidence that would be inadmissible at trial may not be considered in support of or in opposition to a motion for summary judgment. See Fabiano v. City of Palos Hills, 336 Ill.App.3d 635, 648, 271 Ill.Dec. 40, 784 N.E.2d 258, 271 (2002). Therefore, it is necessary to review the circuit court's denial of the motion to strike Fisher's affidavit to determine if the affidavit can be considered in our analysis of MSC's motion for summary judgment.

The parties first disagree on the standard of review to be applied to the denial of the motion to strike the affidavit. Travel 100 seeks de novo review of the circuit court's ruling; MSC asserts that because Travel 100 moved to strike the affidavit as a sanction for an alleged discovery violation, the decision should be reviewed for an abuse of discretion. We agree with Travel 100 that de novo review is warranted because the circuit court's ruling on the motion to strike was made in connection with the court's ruling on a motion for summary judgment. See Jackson v. Graham, 323 Ill.App.3d 766, 773, 257 Ill.Dec. 330, 753 N.E.2d 525, 532-32 (2001).

In the affidavit, Fisher stated that from about April 2002 to June 2004, she was an office manager of Travel 100's Chicago office. The office received a questionnaire from Plog/Northstar by fax. Fisher completed the document and returned it by fax on December 16, 2002. The cover letter to the questionnaire stated, in part:

"Dear Travel Agency Owner or Manager:

We are in the process of updating your Company's Profile in our TravelEdge research database, and would appreciate your taking a few minutes to fill out the update form. Having current information enhances the quality of all our research/trend data on the travel agency market, and assures that suppliers will direct relevant promotions and FAM [familiarization] trip information to our participants."

In moving for summary judgment, MSC and the third-party defendants argued that the December 2002 questionnaire, as well as other documents sent from Travel 100 to IATAN, established Travel 100's express invitation and permission to receive advertisements by fax.

Travel 100 moved to strike Fisher's affidavit, contending that it was not given notice of the January 17, 2006, deposition of Fisher by counsel for Captaris. Travel 100 argues that the attorneys for Captaris led Fisher to believe she was being subpoenaed for a deposition at which she had no choice but to appear. Travel 100 asserted that what was represented to be a...