United States District Court, N.D. Ohio, Eastern Division
WHITEAMIRE CLINIC, P.A. INC., Plaintiff,
CARTRIDGE WORLD NORTH AMERICA, LLC., ET AL., Defendant.
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the Plaintiff's Motion
for Class Certification. (ECF DKT # 97). For the following
reasons, the Court GRANTS Plaintiff's
Motion for Class Certification.
3, 2012, Plaintiff Whiteamire Clinic received a facsimile
(“the 7/3 Fax Ad”) advertising Defendant
Cartridge World's printers, ink, toner and other
products. (ECF DKT #97, “Exhibit A”). On July 16,
2012, Plaintiff received an identical facsimile (“the
7/6 Fax Ad”) advertising Defendant's printers, ink,
toner and other products. (ECF DKT #97, “Exhibit
B”). The faxes included marketing inducements such as
“30% savings” and “FREE DELIVERY.”
Id. Plaintiff did not give permission for Defendant
to send the 7/3 and 7/16 Fax Ads. (ECF DKT #1).
Fax Ad and 7/16 Fax Ad were part of a conventional
advertising campaign managed by Thomas McLaughlin, Cartridge
World's Marketing Director at that time. (ECF DKT #64,
Deposition of Thomas McLaughlin). MComm Group
(“MComm”), a design firm, created the layout for
the advertisement and hired USADATA to compile a list of
potential business customers. Id. MComm then hired
PIP Printing to transmit the 7/3 and 7/16 Fax Ads to the
customer list purchased from USADATA. (ECF DKT #96,
Deposition of Charlie Calloway). PIP Printing utilized
RingCentral, a telecommunication services provider, for the
transmission of the advertisement. Id. RingCentral
produced PIP Printing's fax log data from the
transmissions via an Excel spreadsheet (“RingCentral
046 Spreadsheet”). (ECF DKT #97, “Exhibit
D” Declaration of Mark Smoot). The RingCentral 046
Spreadsheet data shows PIP Printing transmitted the 7/3 Fax
Ad on July 3, 2012 to 9337 fax numbers, 5623 of which were
successful. (ECF DKT #97, “Exhibit E” Declaration
of Mark Smoot). The Spreadsheet also shows that on July 16,
2012, PIP Printing transmitted the 7/16 Fax Ad to 4639 fax
numbers, 2963 of which were successful. Id.
February 1, 2016, Plaintiff, on behalf of itself and a
putative class, filed this action for injunction, statutory
and treble damages resulting from violations of the Junk Fax
Prevention Act (“JFPA”), 42 U.S.C. § 227.
The JFPA makes the sending of unsolicited advertisements via
It shall be unlawful for any person within the United States
. . . to use any telephone facsimile machine, computer, or
other device to send an unsolicited advertisement to a
telephone facsimile machine, unless . . . the unsolicited
advertisement is from a sender with an established business
relationship with the recipient . . . and the unsolicited
advertisement contains a[n opt-out] notice . . . .
42 U.S.C. § 227(b)(1)(C). As such, a violation occurs
when an individual sends this advertisement over fax.
proposed class is defined as: “All subscribers of
accounts (or other persons/entities) associated with (1) the
fax numbers listed in the RingCentral 046 Spreadsheet (2)
successfully sent a fax with ‘start time' of July
3, 2012 or July 16, 2012.” (ECF DKT #97). Plaintiff
seeks to certify a class under Fed.R.Civ.P. 23(b)(3) made up
of entities or person who received the 7/3 Fax Ad or the 7/16
Law and Analysis
class action is ‘an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.'” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v.
Yamasaki, 442 U.S. 682, 700-01 (1979)). “A class
representative must be part of the class and possess the same
interest and suffer the same injury as the class
members.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348-49 (2011) (quoting East Tech Motor Freight
System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1997)
(internal citations omitted)).
be certified, a class must satisfy all four of the Rule 23(a)
prerequisites - numerosity, commonality, typicality, and
adequate representation - and fall within one of the three
types of class actions listed in Rule 23(b).” Young
v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir.
2012) (citing Sprague v. Gen. Motors Corp., 133 F.3d
388, 397 (6th Cir. 1998) (en banc)). “The party seeking
class certification has the burden to prove the Rule 23
certification requirements.” Young, 693 F.3d
“does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate
his compliance with the Rule.” Dukes, 564 U.S.
at 350. Fed.R.Civ.P. 23(a) reads:
(a) Prerequisites. One or more members of a class may sue or
be sued as representative parties on behalf of all members
(1) the class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or ...