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Whiteamire Clinic P.A., Inc. v. Cartridge World North America, LLC

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

July 30, 2019

WHITEAMIRE CLINIC, P.A. INC., Plaintiff,
v.
CARTRIDGE WORLD NORTH AMERICA, LLC., ET AL., Defendant.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Factual Background

         On July 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).

         The 7/3 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.

         On 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 facsimile unlawful:

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. Id.

         The 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 Fax Ad.

         II. Law and Analysis

         “The 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)).

         “To 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 at 537.

         Rule 23 “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 only if:
(1) the class is so numerous that joinder of all members is impracticable;
(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 ...

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