FOURTH DIVISION November 6, 2014

No. 1-13-1543

BALLARD RN CENTER, INC., f/k/a ) Ballard Nursing Center, Inc., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 10 CH 17229 ) KOHLL’S PHARMACY AND HOMECARE, ) Honorable INC., ) Neil Cohen, ) Judge Presiding. Defendant-Appellant. )

JUSTICE BILL TAYLOR delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.

OPINION

¶1 In this interlocutory appeal, defendant Kohll’s Pharmacy & Homecare, Inc. (Kohll’s),

appeals the trial court’s decision to grant class certification to plaintiffs.

¶2 On March 3, 2010, plaintiff Ballard RN Center, Inc. (Ballard), allegedly received an

unsolicited one-page fax from Kohll’s which advertised corporate flu shot services. Ballard filed

suit against Kohll’s, seeking statutory damages under the Telephone Consumer Protection Act

(

(2006)) (TCPA) and the Illinois Consumer Fraud and Deceptive Business

Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 2010)), and also damages for

conversion of ink and paper. Ballard additionally filed a motion for class certification,

requesting that the court certify a class of all parties who, on or about March 3, 2010, were sent

unsolicited advertising faxes by Kohll’s. Discovery showed that on March 3, 2010, Kohll’s sent

the fax at issue to a total of 4,760 fax numbers and successfully transmitted it to 4,142 of them. No. 1-13-1543

¶3 The trial court granted Ballard’s motion and certified the class on April 15, 2013.

Kohll’s appeals this certification order. For the reasons that follow, we affirm in part and reverse

in part.

¶4 I. BACKGROUND

¶5 On April 20, 2010, Ballard filed its complaint, which was styled “Complaint – Class

Action.” The complaint alleges that on March 3, 2010, Ballard received an unsolicited fax from

Kohll’s, although Ballard had no prior relationship with Kohll’s and had not authorized the

sending of fax advertisements from Kohll’s. It alleges that the fax did not provide an “opt out

notice” as required by the TCPA even when faxes are sent with consent or pursuant to an

established business relationship. It further asserts, on information and belief, that the fax from

Kohll’s was part of a mass broadcasting of faxes and Kohll’s had transmitted similar unsolicited

fax advertisements to at least 40 other persons in Illinois.

¶6 A copy of the fax is attached to the complaint. The fax is a one-page document

advertising “Corporate Flu Shots.” At the bottom of the page, under the heading “Removal

From List Request,” the fax states, “If you have received this information in error or if you are

requesting that transmissions cease in the future, please notify the sender to be removed as the

recipient of future transmissions.” It then provides contact information by fax, phone, and email.

¶7 Ballard’s complaint seeks relief in three counts. Count I seeks relief under the TCPA,

which prohibits the use of any telephone facsimile machine, computer, or other device to send an

unsolicited advertisement to a telephone facsimile machine (

(b)(1)(c) (2006))

and provides that a private plaintiff can bring suit for violation of the TCPA for $500 in statutory

damages, with treble damages for willful or knowing violations. Count II seeks relief under the

Consumer Fraud Act (815 ILCS 505/2 (West 2010)), alleging that Kohll’s unsolicited fax

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advertising constituted “unfair acts and practices” in the course of trade and commerce. Finally,

count III, for conversion, alleges that by sending unsolicited faxes, Kohll’s converted to its own

use ink and paper that belonged to Ballard and the class members.

¶8 On the same day that Ballard filed its complaint, it also filed a “Motion for Class

Certification.” In that motion, Ballard requested that the court certify the following classes:

“All persons and entities with facsimile numbers (1) who, on or after April 20,

2006, or such shorter period during which faxes were sent by or on behalf of defendant

Kohll’s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant

Kohll’s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and

who were not provided an ‘opt out’ notice that complies with federal law. (Count I)

All persons and entities with Illinois fax numbers (1) who, on or after April 20,

2007, or such shorter period during which faxes were sent by or on behalf of defendant

Kohll’s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant

Kohll’s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and

who were not provided an ‘opt out’ notice that complies with federal law. (Count II)

All persons and entities with Illinois fax numbers (1) who, on or after April 20,

2005, or such shorter period during which faxes were sent by or on behalf of defendant

Kohll’s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant

Kohll’s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and

who were not provided an ‘opt out’ notice that complies with federal law. (Count III)”

The motion contains no factual allegations in support of class certification. It states that

“[p]laintiff will file a supporting Memorandum of Law in due course”; however, it appears that

no such memorandum was ever filed.

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¶9 On June 28, 2012, Kohll’s filed for partial summary judgment on count I of Ballard’s

complaint. In its motion, Kohll’s alleged that, on three separate occasions, Kohll’s tendered an

unconditional offer of payment consisting of a sum that covered all damages Ballard might be

entitled to under the TCPA. According to Kohll’s, Ballard’s counsel summarily rejected this

tender while giving no legal basis as to why additional damages were due under the TCPA.

Kohll’s further asserted that Ballard had not yet filed a motion for class certification. Based

upon these allegations, Kohll’s argued that Ballard’s TCPA claim was moot under Barber v.

American Airlines, Inc.,

(2011), which holds that a named representative’s

claim is moot in a class action when the defendant tenders the amount of damages the plaintiff

seeks before the representative files a motion for class certification.

¶ 10 Attached to Kohll’s motion are three letters sent by Kohll’s to Ballard. The first, dated

June 29, 2011, includes a check for $1,600; the second, dated June 5, 2012, includes a check for

$1,500; the third, dated June 28, 2012, includes a check for $2,500. All three of these offers

were rejected by Ballard and the checks returned to Kohll’s.

¶ 11 Ballard filed a response to Kohll’s motion for summary judgment in which it

acknowledged that Kohll’s had correctly stated the holding of Barber but denied that Barber

applied to its case, since Ballard had filed a motion for class certification concurrently with the

filing of its complaint on April 20, 2010.

¶ 12 Kohll’s filed a reply in which it argued that the April 20, 2010, motion was an incomplete

“shell” motion that was legally insufficient to satisfy Barber. In this regard, Kohll’s pointed out

that Ballard had never presented that motion to the court or set a hearing date. Kohll’s also

stated that Ballard filed the April 20, 2010, motion before discovery had been conducted and

therefore had no knowledge of the class.

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¶ 13 On November 29, 2012, the trial court denied Kohll’s motion for partial summary

judgment, stating that Kohll’s did not make its tender prior to the filing of Ballard’s class

certification motion. It reasoned that “Barber requires only that a motion for class certification

be filed. It does not require that it meet any certain standard.”

¶ 14 Ballard then filed an amended motion for class certification, stating, “Having conducted

discovery, Plaintiff has revised and limited the Class Definition from that included in its original

motion for Class Certification ***.” According to Ballard, discovery showed that Kohll’s had

contracted with a list service provider known as Red Door Marketing to purchase thousands of

fax numbers of businesses located throughout the United States. Discovery also showed that

Kohll’s sent its “Corporate Flu Shots Blast Fax” to 4,760 fax numbers on the list, and 4,142 of

those fax transmissions were successful. A Westfax invoice for services performed on March 3,

2010, indicates exactly which transmissions were successful. Based upon these facts, Ballard

submitted the following proposed class definition: “(a) all parties (b) who, on or about March 3,

2010, (c) were sent advertising faxes by Defendant (d) and with respect to whom Defendant

cannot provide evidence of consent or a prior business relationship.”

¶ 15 On April 15, 2013, the trial court granted Ballard’s motion and certified the above class.

Kohll’s now appeals this certification order. See Ill. S. Ct. R. 306(a)(8) (eff. Feb. 16, 2011)

(allowing permissive interlocutory appeals from orders granting class certification).

¶ 16 II. ANALYSIS

¶ 17 On appeal, Kohll’s argues that class certification was improper under section 2-801 of the

Code of Civil Procedure (735 ILCS 5/2-801 (West 2010)), which sets forth the prerequisites for

the maintenance of a class action. Under section 2-801, an action may only be maintained as a

class action if the following conditions are met: (1) numerosity (the class is so numerous that the

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joinder of all members is impracticable); (2) commonality (there are common questions of law

and fact among the members of the class that predominate over individual issues); (3) adequacy

of representation (the representative party will fairly and adequately protect the interest of the

class); and (4) appropriateness (a class action is a fair and efficient way to adjudicate the

controversy).

The plaintiff bears the burden of establishing these prerequisites, and the court

must find them present before it sanctions the maintenance of an action as a class action.

McCabe v. Burgess,

(1979). We review the trial court’s decision to certify

a class for an abuse of discretion. Avery v. State Farm Mutual Automobile Insurance Co.,

(2005); Walczak v. Onyx Acceptance Corp.,

(2006).

¶ 18 In this appeal, Kohll’s does not challenge the element of numerosity, but it does

challenge the elements of commonality, adequacy of representation, and appropriateness. We

consider Kohll’s arguments in turn.

¶ 19 A. Commonality

¶ 20 Kohll’s first contention is that the trial court abused its discretion in finding that common

questions of law and fact predominate over individual issues. Kohll’s identifies two issues of

fact which, it argues, are not common to all class members but must be determined on an

individual basis. First, Kohll’s argues that it has not been demonstrated that all class members

did not consent to the fax in question. Second, Kohll’s speculates that some of the unsolicited

fax transmissions may have been diverted to computers and never physically printed. If that

were the case, according to Kohll’s, the sending of the faxes would not be a TCPA violation, and

it also would not constitute conversion, insofar as no paper and ink would have been used.

¶ 21 “The test for predominance is not whether the common issues outnumber the individual

ones, but whether common or individual issues will be the object of most of the efforts of the

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litigants and the court.” Smith v. Illinois Central R.R. Co.,

(2006). As

long as common questions predominate, the existence of individual issues will not defeat class

certification. Miner v. Gillette Co.,

(1981) (citing Steinberg v. Chicago Medical

School,

(1977) (“No doubt there will be situations where there may be

questions peculiar to certain members of the class. However, once there is a determination that

there exists a question of fact or law common to the class and that this predominates the question

affecting only individual members, the statute is satisfied.”)). For this reason, “commonality and

typicality are generally met where, as here, a defendant engages in a standardized course of

conduct vis-a-vis the class members, and plaintiffs’ alleged injury arises out of that conduct.”

Hinman v. M&M Rental Center, Inc.,

(N.D. Ill. 2008) (in fax blast

case, holding that “[t]he possibility that some of the individuals on the list may separately have

consented to the transmissions at issue is an insufficient basis for denying certification”). 1

Moreover, “ ‘the hypothetical existence of individual issues is not a sufficient reason to deny the

right to bring a class action.’ ” Miner,

(where plaintiff’s claim was predicated

upon a series of essentially identical transactions by thousands of class members, and the

individual questions postulated by defendant were “mere hypotheticals,” such hypotheticals did

not bar the action) (quoting Harrison Sheet Steel Co. v. Lyons,

(1959)).

¶ 22 In this case, there are significant common issues of fact and law pertaining to all class

members. The record shows that Kohll’s contracted with a list service provider known as Red

1 Hinman dealt with class certification under Rule 23 of the Federal Rules of Civil

Procedure (Fed. R. Civ. P. 23). Section 2-801 is patterned after Rule 23, and federal decisions

interpreting Rule 23 are persuasive authority with regard to the question of class certification in

Illinois. Avery v. State Farm Mutual Automobile Insurance Co.,

(2005).

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Door Marketing to purchase thousands of fax numbers of businesses, and it then engaged a third

party to send the fax at issue to over 4,000 numbers on this list. Thus, the manner in which

Kohll’s identified these recipients will not require individualized inquiry. It is apparent that

Kohll’s “engage[d] in a standardized course of conduct vis-a-vis the class members, and

plaintiffs’ alleged injury arises out of that conduct” (Hinman,

). See Kavu,

Inc. v. Omnipak Corp.,

(W.D. Wash. 2007) (commonality requirement was

satisfied where defendant “engaged in a common course of conduct” by purchasing recipients’

fax numbers from a database and then sending the same fax transmission to all recipients within

a short period of time). Common questions include whether the fax was an “advertisement”

under the TCPA and whether Kohll’s acts were willful or knowing. See Ira Holtzman, C.P.A. v.

Turza,

(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.”).

¶ 23 Notwithstanding the foregoing, Kohll’s contends that outstanding issues of consent

should prevent class certification, since it is possible that some of the class members either

consented to receive advertisements from Kohll’s or had an existing business relationship with

Kohll’s. If that were the case, according to Kohll’s, there would be no TCPA violation with

respect to those class members. Ballard disagrees, arguing that consent and existing business

relationship are not defenses in this case because Kohll’s failed to provide an opt-out notice that

fully complies with section 227(b)(2)(D) of the TCPA.

¶ 24 To resolve this issue, we need to take a closer look at the statutory language in question.

The TCPA prohibits the sending of an “unsolicited advertisement” to a “telephone facsimile

machine” unless the sender has consent or an established business relationship with the recipient

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and the advertisement contains an opt-out notice “meeting the requirements under paragraph

(2)(D).”

(b)(1)(C)(iii) (2006). The statute itself does not expressly require that

an opt-out notice be included in solicited or consented-to fax advertisements. However, the most

pertinent regulation in this case extends the opt-out notice requirement to solicited fax

advertisements, stating: “A facsimile advertisement that is sent to a recipient that has provided

prior express invitation or permission to the sender must include an opt-out notice that complies

with the requirements in paragraph (a)(4)(iii) of this section.”

(a)(4)(iv)

(2013). Under this regulation, courts have held that, even where the TCPA permits fax

advertisements because of consent or an established business relationship, such faxes must still

contain opt-out information that complies with federal regulations. Ira Holtzman,

(stating that “[defendant’s] faxes did not contain opt-out information, so if they are properly

understood as advertising then they violate the Act whether or not the recipients were among

[defendant’s] clients”); Nack v. Walburg,

(8th Cir. 2013) (“the regulation as

written requires the senders of fax advertisements to employ the above-described opt-out

language even if the sender received prior express permission to send the fax”).

¶ 25 The requirements for a valid opt-out notice are as follows:

“A notice contained in an advertisement complies with the requirements under this

paragraph only if–

(A) The notice is clear and conspicuous and on the first page of the

advertisement;

(B) The notice states that the recipient may make a request to the sender of

the advertisement not to send any future advertisements to a telephone facsimile

machine or machines and that failure to comply, within 30 days, with such a

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request meeting the requirements under paragraph (a)(4)(v) of this section is

unlawful;

(C) The notice sets forth the requirements for an opt-out request under

paragraph (a)(4)(v) of this section;

(D) The notice includes–

(1) A domestic contact telephone number and facsimile

machine number for the recipient to transmit such a request to the

sender; and

(2) If neither the required telephone number nor facsimile

machine number is a toll-free number, a separate cost-free

mechanism including a Web site address or email address ***.”

(Emphasis added.)

(a)(4)(iii) (2013).

See also

(b)(2)(D)(ii) (2006) (an opt-out notice is only valid if the notice states

that it is unlawful not to comply with a list removal request “within the shortest reasonable time,

as determined by the Commission”).

¶ 26 In the present case, Kohll’s provided an opt-out notice on its fax, but that opt-out notice

did not fully comply with the requirements listed above. Kohll’s opt-out notice stated, “If you

have received this information in error or if you are requesting that transmissions cease in the

future, please notify the sender to be removed as the recipient of future transmissions.” It also

provided contact information by fax, phone, and email. However, it did not state that failure to

comply with a list removal request within 30 days was unlawful, as required by subsection (B)

quoted above. Thus, we agree with Ballard that the opt-out notice provided by Kohll’s did not

strictly comply with federal law, and, as such, the fax would appear to be a TCPA violation even

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if Kohll’s had consent or a prior business relationship with some of the class members. See

(a)(4)(iv) (2013).

¶ 27 Moreover, in any event, we note that Kohll’s does not positively assert that it had consent

or an established business relationship with any of the parties to whom it sent the fax; it only

speculates that such factors might potentially exist. Nothing in the record indicates that either

Kohll’s or anyone acting on its behalf obtained consent from, or had an established business

relationship with, any of the recipients of its fax blast. On the contrary, when asked in

interrogatories about the issue of consent, Kohll’s stated: “We don’t know if consent was

received. We purchased the list [of fax numbers] from Red Door Marketing ***. Red Door

Marketing was the entity who processed information relating to the advertising faxes that

existed. We are unaware of the lists that Red Door maintains.” Based upon this statement, it

would appear that Kohll’s arguments with regard to consent are merely speculative and not

grounded in facts. “ ‘[T]he hypothetical existence of individual issues is not a sufficient reason

to deny the right to bring a class action.’ ” Miner,

(quoting Harrison Sheet Steel,

); see Hinman,

(requirement of commonality is typically

met where a defendant engages in a standardized course of conduct toward all class members

and the alleged injury arises from that conduct). Thus, we cannot say that the trial court abused

its discretion in finding that the merely hypothetical issues of consent raised by Kohll’s were

insufficient to preclude class certification. See

(in “fax blast” case, hypothetical

possibility that some recipients might have consented to the transmissions at issue was

insufficient to prevent class certification); see also Display South, Inc. v. Express Computer

Supply, Inc., 2006-1137, at 10 (La. App. 1 Cir. 5/4/07);

(in TCPA case,

rejecting defendant’s argument that possibility of existing business relationship with fax

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recipients should preclude class certification, since “the fact that some plaintiffs may offer a

defense does not prohibit certification of a class”).

¶ 28 Kohll’s second contention with regard to commonality is that some of the class members

may have received the fax transmission in the form of an email instead of physically printing it

out. Kohll’s argues that any such class members would not have a valid claim under the TCPA,

since a computer is not a “telephone facsimile machine” within the meaning of the TCPA.

Kohll’s additionally argues that such class members would not have a valid claim for conversion

of ink and paper.

¶ 29 With regard to the TCPA, the relevant statutory language is as follows:

“(b) Restrictions on the use of automated telephone equipment.

(1) Prohibitions.

It shall be unlawful for any person within the United States ***

***

(C) to use any telephone facsimile machine, computer, or

other device to send an unsolicited advertisement to a telephone

facsimile machine.” (Emphasis added.)

(2006).

The TCPA defines a “telephone facsimile machine” as

“equipment which has the capacity (A) to transcribe text or images, or both, from paper

into an electronic signal and to transmit that signal over a regular telephone line, or (B) to

transcribe text or images (or both) from an electronic signal received over a regular

telephone line onto paper.”

(a)(3) (2006).

As Ballard points out, the statute does not make physical printing an element of the offense; it

only requires that an unsolicited advertisement be sent to a “telephone facsimile machine.” As

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for whether a computer constitutes a “telephone facsimile machine” within the meaning of the

TCPA, we note that, in the hypothetical scenario envisioned by Kohll’s, the computers at issue

must have been set up in order to receive electronic signals over a telephone line, so that they

could convert Kohll’s fax into an email. We also note that, in the context of the modern office,

most computers are connected to printers which can transcribe text or images received via email

onto paper. A strong argument could be made that a computer that is used to receive fax

transmissions is a telephone facsimile machine for TCPA purposes, at least with regard to any

fax transmissions that it actually receives.

¶ 30 In support of its argument that a computer is not a telephone facsimile machine, Kohll’s

relies primarily on Aronson v. Bright-Teeth Now, LLC,

, in which the court

held that the sending of unsolicited commercial emails was not a violation of the TCPA.

However, Aronson is distinguishable from the instant case because it did not involve fax

transmissions in any form. The Aronson plaintiff received six “spam” emails from the defendant

and brought suit under the TCPA, seeking $9,000 in statutory damages. Id. ¶ 2. Under these

facts, the court held that plaintiff’s computer was not a telephone facsimile machine and plaintiff

did not have a valid TCPA claim. Id. The Aronson court did not purport to address the scenario

proposed by Kohll’s in this case, where a computer is set up to receive fax transmissions in lieu

of a traditional fax machine and, in fact, does receive those transmissions.

¶ 31 More persuasive is the Seventh Circuit decision in Ira Holtzman,

. In that

case, defendant was sued under the TCPA for sending over 8000 unsolicited advertising faxes.

. The trial court certified a class of the faxes’ recipients and subsequently granted

summary judgment for plaintiffs.

. On appeal, the court rejected defendant’s argument

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that each recipient would have to prove that he actually printed the fax in question or otherwise

suffered monetary loss. The court explained:

“[Defendant] is wrong on the law. The statute provides a $500 penalty for the annoyance.

[Citation.] Even a recipient who gets the fax on a computer and deletes it without printing

suffers some loss: the value of the time necessary to realize that the inbox has been

cluttered by junk.” (Emphasis in original.)

(citing

(b)(3)(B) (2006)).

Likewise, in the instant case, class members who received Kohll’s fax by email would not

automatically be barred from recovery under the TCPA.

¶ 32 Moreover, even if we were to agree with Kohll’s that a computer used to receive faxes is

not a telephone facsimile machine, the mere unsupported possibility that some class members

might have received Kohll’s fax by email is an insufficient basis for denying class certification.

As discussed earlier, as long as common issues predominate over individual ones, class

certification is proper notwithstanding the hypothetical existence of individual issues. Miner,

(where plaintiff’s claim was predicated upon a series of essentially identical

transactions by thousands of class members, and the individual questions postulated by

defendant were “mere hypotheticals,” such hypotheticals did not bar the action); Harrison Sheet

Steel Co.,

(“Where it appears that the common issue is dominant and pervasive,

something more than the assertion of hypothetical variations of a minor character should be

required to bar the action.”). In this case, where Kohll’s contracted with a third party to send a

“fax blast” to over 4,000 numbers on a purchased list, we cannot say that the trial court abused

its discretion in finding that the requirement of commonality has been met. See Ira Holtzman,

(class certification is “normal” in TCPA actions because “the main questions

*** are common to all recipients”); Hinman,

(element of commonality

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was met in TCPA case because defendant “engage[d] in a standardized course of conduct vis-a-

vis the class members”).

¶ 33 B. Appropriateness

¶ 34 Kohll’s next contends that the trial court abused its discretion in finding that a class

action lawsuit is a fair and efficient way to adjudicate this controversy, where the putative class

consists of parties who received a one-page fax over three years ago. Kohll’s additionally argues

that class certification is inappropriate for TCPA actions generally because Congress, in enacting

the TCPA, did not intend for class action lawsuits to be used as a means of enforcement.

¶ 35 In deciding whether a class action lawsuit is an appropriate way to adjudicate a

controversy, courts consider whether it (1) serves the economies of time, effort, and expense, (2)

prevents possible inconsistent results, and (3) otherwise accomplishes the ends of equity and

justice. Gordon v. Boden,

(1991); Society of St. Francis v. Dulman,

(1981). Courts’ consideration of these factors often mirrors the analysis of

the other section 2-801 elements, particularly the elements of numerosity and commonality.

Clark v. TAP Pharmaceutical Products, Inc.,

(2003) (citing Steinberg,

); Gordon,

. Where a class is numerous and common

questions of fact and law predominate, it is more efficient to address the common issues in a

single action instead of litigating each individual case separately. Clark,

;

see Fakhoury v. Pappas,

(2009) (“Certainly having one common

complaint rather than thousands of separate complaints considering the same issue promotes the

economics of time, effort, expense and uniformity over requiring thousands of complaints.”).

¶ 36 In this case, as discussed above, Kohll’s sent a “fax blast” to over 4,000 fax numbers on a

purchased list. Courts have regularly recognized that class action lawsuits are an appropriate

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way of resolving TCPA cases involving blast faxing using purchased lists, because it serves the

ends of judicial economy and uniformity. For instance, in Hinman,

, the

defendant sent one-page fax “flyers” en masse to companies whose fax numbers were on a

purchased list. The Hinman court certified a class of the fax recipients, explaining that class

certification was appropriate because “resolution of the issues on a classwide basis, rather than in

thousands of individual lawsuits (which in fact may never be brought because of their relatively

small individual value), would be an efficient use of both judicial and party resources.”

; see also CE Design Ltd. v. Cy’s Crabhouse North, Inc.,

(N.D. Ill. 2009)

(certifying class in TCPA suit where defendant contracted with a third party to send a fax

broadcast to several thousand fax numbers); Targin Sign Systems, Inc. v. Preferred Chiropractic

Center, Ltd.,

(N.D. Ill. 2010) (same); Lampkin v. GGH, Inc.,

,

(trial court abused its discretion in denying class certification

in TCPA case; class action was superior method of adjudicating controversy because, if the class

members pursued their claims individually, it would “unduly and unnecessarily clog the judicial

system of this state” (internal quotation marks omitted)); Kavu,

; Display South,

Inc.,

.

¶ 37 Kohll’s nevertheless argues that certification is inappropriate under the facts of this case,

where the putative class consists of parties who received a one-page fax over three years ago.

Kohll’s argues that this is problematic for three reasons. First, potential plaintiffs may not recall

whether or not they received such a fax. Second, and relatedly, it is possible that parties who did

not actually receive a fax but were on the fax blast list will lie about receipt in order to recover

monetary damages. Third, according to Kohll’s, the only way to include potential plaintiffs in

the class will be to send out unsolicited faxes to the numbers listed on the alleged “fax blast” list

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to notify them of the existence of the litigation. Kohll’s acknowledges that such faxes would not

violate the TCPA, since they are not advertisements, but it argues that the irony of sending such

faxes is “inescapable.”

¶ 38 With regard to Kohll’s first two objections, we find that the problems of proof are not

nearly as dire as Kohll’s suggests. On the contrary, the record reflects that, after Kohll’s hired

Westfax to send the fax transmissions at issue, Westfax sent Kohll’s an invoice for services and a

detailed report indicating exactly which 4,760 numbers the fax was sent to and which of those

transmissions were successful. Because the 4,142 successful transmissions are specifically

identified, Kohll’s concerns about proof would seem to be misplaced. See Ira Holtzman,

(“To the extent [defendant] contends that each recipient must prove that his fax

machine or computer received the fax, he is right on the law but wrong on the facts. The record

establishes which transmissions were received and which were not.”).

¶ 39 As for Kohll’s concern about having to send unsolicited faxes to class members to notify

them that they are part of the class, although the irony of the situation is not lost on us, we do not

find this to be a sufficient reason to deny class certification. This same problem would tend to

arise in all TCPA class action lawsuits involving fax blasts sent to purchased lists, and, as noted,

courts routinely certify classes in such cases. See, e.g., Hinman,

. We

also note that Ballard asserts that it has the ability to determine a name and address associated

with the “vast majority” of the class members’ fax numbers, which, if true, would presumably

remove the need to contact them via unsolicited faxes.

¶ 40 Kohll’s final argument is that class certification is inappropriate for TCPA actions in

general because Congress, in enacting the TCPA, did not intend for class action lawsuits to be

used as a means of enforcement. As noted, the TCPA provides for statutory damages of $500

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per violation, with treble damages for willful or knowing violations.

(b)(3)

(2006). Kohll’s argues that, under this statutory scheme, its potential liability in a class action

lawsuit would be a crippling sum that would dwarf the actual harm incurred by the class

members, a result that Congress surely did not intend.

¶ 41 However, the legislative history of the TCPA belies the assertion that class action

lawsuits in TCPA cases are against congressional intent. The TCPA was first enacted in 1991.

In 2005, Congress amended the TCPA by enacting the Junk Fax Prevention Act of 2005 (JFPA)

(

(2006)). At the time the JFPA was enacted, there had been numerous class

action lawsuits certified under the TCPA. See, e.g., ESI Ergonomic Solutions, LLC v. United

Artists Theatre Circuit, Inc.,

(Ariz. Ct. App. 2002); Core Funding Group, LLC v.

Young,

(Ind. Ct. App. 2003). Nevertheless, Congress did not take any action to

prohibit or narrow the scope of class action lawsuits under the TCPA. 2 It is therefore apparent

that the legislature has acquiesced in courts’ construction of the statute allowing for class action

lawsuits. See Charles v. Seigfried,

(1995) (where legislature acquiesces in

judicial interpretation of statute, that interpretation “become[s] part of the fabric” of the statute

and departure from that interpretation is tantamount to an amendment of the statute itself).

2 Many laws that authorize statutory damages also limit the aggregate award to any class.

For example, the Fair Debt Collection Practices Act says that total recovery may not exceed “the

lesser of $500,000 or 1 per centum of the net worth of the debt collector.” 15 U.S.C.

§ 1692k(a)(2)(B)(ii) (2006). The Truth in Lending Act has an identical cap.

(a)(2)(B) (2006) (substituting “creditor” for “debt collector”). However, Congress has

chosen not to implement such a limit on actions under the TCPA.

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¶ 42 Moreover, we note that “[a]n award that would be unconstitutionally excessive may be

reduced [citation], but constitutional limits are best applied after a class has been certified.”

Murray v. GMAC Mortgage Corp.,

(7th Cir. 2006) (citing State Farm Mutual

Automobile Insurance Co. v. Campbell,

(2003) (reversing excessively high

damages award as a violation of due process)). Whether a reduction in damages to comply with

due process is required, and how much, is in itself a classwide issue that should be resolved

identically as to each class member. It is not a reason to deny class certification in the first

instance. Murray,

.

¶ 43 Therefore, for the foregoing reasons, we do not find that the trial court abused its

discretion in finding a class action lawsuit to be a fair and efficient way to adjudicate this

controversy.

¶ 44 C. Adequacy of Representation: Whether Ballard is a “Pawn” of Its Counsel

¶ 45 Kohll’s next contends that Ballard is not an adequate class representative because it is

merely a “pawn” of its counsel, the law firm Edelman and Combs. In support, Kohll’s argues

that the deposition of Eli Pick, the former owner of Ballard and its corporate representative,

shows that were it not for Ballard’s attorneys, Ballard would have settled the litigation or

accepted Kohll’s tender. Ballard states that Kohll’s allegations in this regard are “wholly

unsupported, offensive and inappropriate” and further argues that there is no real evidence of

impropriety which would disqualify Ballard as representative.

¶ 46 The purpose of the adequate representation requirement is to ensure that all class

members will receive proper, efficient, and appropriate protection of their interests in the

proceedings. Cruz v. Unilock Chicago, Inc.,

(2008) (quoting P.J.’s

Concrete Pumping Service, Inc. v. Nextel West Corp.,

(2004)); see

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also Ramirez v. Smart Corp.,

(2007). To be an adequate class

representative, the putative class action plaintiff must be a member of the class.

The plaintiff

must not be seeking relief that is potentially antagonistic to nonrepresented members of the class

(Client Follow-Up Co. v. Hynes,

(1982)), and it must have the desire

and ability to prosecute the claim vigorously on behalf of itself and the other class members

(Hall v. Sprint Spectrum L.P.,

(2007)). It is this last requirement which

Kohll’s contends is missing in the instant case. Kohll’s argues that the testimony of Pick shows

that Ballard lacks any true interest in prosecuting the claim aside from the desire of its counsel.

We turn now to examine this testimony.

¶ 47 In his deposition, Pick testified that he worked for Ballard from 1978 until his retirement

in May 2011, and he was the executive director of Ballard from 1991 onward. He stated that he

recalled seeing Kohll’s fax on his company fax machine. He picked it up and forwarded it to his

law firm, Edelman and Combs, because it was an unsolicited fax and he had previously had

discussions with Edelman and Combs about what to do with unsolicited faxes.

¶ 48 Pick stated that in his capacity as executive director of Ballard, he had filed “more than

six” lawsuits alleging violations of the TCPA, although he could not remember the exact

number. He stated that the decision to file these lawsuits was his “in conjunction with the review

with counsel.” He additionally stated that the ultimate decision belonged to him.

¶ 49 Pick testified that his goal in taking such action was twofold. First, he said, “I forwarded

unsolicited faxes [to Edelman and Combs] so that I would stop receiving unsolicited faxes.” He

explained that he noticed a pattern that when Edelman and Combs contacted the companies that

sent him unsolicited faxes, he never received additional faxes from those companies. Second, he

said, “I wanted to recover the expenses that I had lost as a result of an unsolicited fax.”

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¶ 50 Counsel for Kohll’s asked Pick what expenses Ballard incurred as a result of an

unsolicited fax. Pick stated that the expenses consisted of paper, ink, and staff time to pick up

the fax. He estimated that the expense incurred from Kohll’s unsolicited fax amounted to “A

few dollars.” Counsel for Kohll’s then asked, “I understand there’s class allegations, but you

would agree with me that $2,500 would more than adequately cover any damage done to Ballard

Nursing Center itself?” Pick replied, “I would agree that $2,500 exceeded the cost that I

incurred, yes.” However, he went on to state, “Ballard was named as part of a class, so I don’t

know about the costs of everybody else who is involved in this.”

¶ 51 Kohll’s contends that this deposition testimony shows that Pick’s only interest in the

litigation was to recover expenses in receiving unwanted faxes, and, if not for his lawyers, he

would have accepted Kohll’s $2,500 settlement offer. We disagree. Initially, we note that,

contrary to Kohll’s contention, Pick did not say that he only sought to recover expenses; he also

said that he wanted to deter companies from sending additional unwanted faxes to Ballard. More

importantly, although Pick admitted that $2,500 would cover Ballard’s own costs in receiving

the unsolicited fax, he also expressed concern regarding the costs of the other class members

who also received faxes from Kohll’s. Pick also stated unequivocally that he was the one who

made the ultimate decision to pursue litigation, though he made his decision after consultation

with counsel. Based upon this testimony, we cannot say that Ballard is a mere “pawn” of its

lawyers or that it lacks the desire and ability to prosecute the claim vigorously on behalf of itself

and the other class members.

¶ 52 The sole authority that Kohll’s cites on this point is the unpublished federal district court

decision of In re AEP ARISA Litigation, No. C2-03-67,

, at *2 (S.D. Ohio

Sept. 8, 2008), where the court found the named plaintiff not to be an adequate representative

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because he was “merely a pawn of the class lawyers.” See Fed. R. App. P. 32.1(a) (unpublished

federal judicial decisions that were issued on or after January 1, 2007, may be cited in federal

court). This case is readily distinguishable on its facts. The plaintiff in that case brought a class

action lawsuit against his employer, alleging mismanagement of its employee retirement savings

plan. AEP ARISA,

, at *1. At a deposition, he revealed that he had not spoken

with his lawyers since he initially contacted them three years earlier; he had never received a

copy of the complaint and was largely ignorant of its contents; he had never received any status

updates about the progress of the case; and he apparently did not even realize that he had agreed

to serve as a class representative, based upon his statement that “I’m just a member of a class.”

. On these facts, the court found that he was not an adequate class representative.

. However, the court also stressed that “the burden on a named plaintiff to establish that he

or she is an adequate class representative is not high” and that “[w]ith even a minimal amount of

consultation with his lawyer, [plaintiff] likely would have passed muster.”

In the present

case, Pick did not display any such ignorance as to the nature of his case or his role in it.

Additionally, as noted, Pick stated that he, not his lawyers, made the ultimate decision to pursue

litigation, and the rest of his deposition gives no reason for us to doubt that assertion. Thus, we

cannot say that the trial court abused its discretion in rejecting Kohll’s argument that Pick’s

deposition shows Ballard to be an inadequate class representative.

¶ 53 D. Adequacy of Representation: Whether Ballard’s Claim is Moot

¶ 54 Kohll’s finally contends that Ballard’s claim has been mooted by Kohll’s tender of

damages, such that Ballard is no longer an adequate class representative. As noted previously,

on June 29, 2011, Kohll’s tendered a check for the sum of $1,600 to Ballard. Ballard refused to

accept that check. Kohll’s subsequently tendered a check for $1,500 on June 5, 2012, and a

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check for $2,500 on June 28, 2012; both checks were similarly refused. Based upon these facts,

Kohll’s argues that Ballard’s claim is now moot under Barber,

, which held

that a named representative’s claim is moot when the defendant tenders the relief requested prior

to the filing of a motion for class certification. See also Wheatley v. Board of Education of

Township High School District 205,

(1984) (holding same). Kohll’s

acknowledges that Ballard filed a “Motion for Class Certification” contemporaneously with its

complaint on April 20, 2010, before any tender was made. Kohll’s nevertheless contends, as it

did before the trial court, that this was an incomplete “shell” motion that is insufficient to satisfy

Barber. In response, Ballard makes three arguments: first, that any motion for class certification,

regardless of its content or lack thereof, is sufficient to satisfy Barber; second, that Ballard’s

claims should not be considered moot where Ballard pursued certification with “sufficient

diligence”; and third, that Kohll’s tenders were insufficient to cover the full amount sought by

Ballard in this action.

¶ 55 An issue is moot where no actual controversy exists between the parties or where

circumstances render the court unable to grant effectual relief. West Side Organization Health

Services Corp. v. Thompson,

(1980). Because Kohll’s mootness argument

relies principally on our supreme court’s decision in Barber, we begin with a discussion of that

case.

¶ 56 In Barber, a passenger brought a class action lawsuit against an airline for charging her a

baggage fee for a flight that had been canceled. Barber,

. Before the

plaintiff had filed any class certification motion, the defendant refunded the baggage fee to her.

. The trial court dismissed plaintiff’s claim as moot, and the Barber court affirmed.

. The court stated the rule with regard to class certifications as follows:

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“[T]he important consideration in determining whether a named representative’s claim is

moot is whether that representative filed a motion for class certification prior to the time

when the defendant made its tender. [Citations.] Where the named representative has

done so, and the motion is thus pending at the time the tender is made, the case is not

moot, and the circuit court should hear and decide the motion for class certification

before deciding whether the case is mooted by the tender.”

.

The court explained that the reason for this rule is that “a motion for class certification, while

pending, sufficiently brings the interests of the other class members before the court ‘so that the

apparent conflict between their interests and those of the defendant will avoid a mootness

artificially created by the defendant by making the named plaintiff whole.’ ”

at 457 (quoting

Susman v. Lincoln American Corp.,

(7th Cir. 1978)).

¶ 57 Although Barber does not explicitly set forth requirements for a valid motion for class

certification, such requirements are implicit in the reasoning behind its holding. If the purpose of

a motion for class certification is to “sufficiently bring[] the interests of the other class members

before the court” (Barber,

), then, in order to satisfy Barber, a motion must

contain sufficient factual allegations so that it does, in fact, bring the interests of the other class

members before the court. Otherwise, the court has no basis upon which to determine whether

an actual controversy exists between the other class members and the defendant, as would avoid

mooting the issue. See West Side,

.

¶ 58 This reading of Barber is consistent with our supreme court’s general approach to class

certification motions. In Weiss v. Waterhouse Securities, Inc.,

(2004), the

court stated that a class certification motion “is typically brought by a putative class action

plaintiff, who asks the court, based on evidentiary materials adduced through discovery, to find

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that the case can proceed as a class action.” (Emphasis added.) See also P.J.’s Concrete

Pumping Service,

(“Class certification issues are typically factual and

should be decided with the benefit of discovery.”). Because of this, the showing that a plaintiff

must make in a class certification motion is higher than the showing that he must make to

withstand a motion to strike class allegations under section 2-615 (750 ILCS 5/2-615 (West

2012)). Weiss,

. It would appear from this distinction that the Weiss court did

not contemplate a class certification motion filed contemporaneously with the complaint and

with no factual allegations in support of certification. Rather, it seems that the Weiss court

anticipated that the parties would be allowed some time for discovery before the filing of any

class certification motion.

¶ 59 Moreover, if a putative class action plaintiff could circumvent the holding of Barber

merely by filing a contentless “shell” motion for class certification contemporaneously with its

complaint, then it would effectively eviscerate the Barber decision. See Toothman v. Hardee’s

Food Systems, Inc.,

(1999) (“We will not interpret supreme court

precedent in such a way that any portion of the decision becomes meaningless.”). Accordingly,

based upon the foregoing, we reject Ballard’s contention that any motion for class certification,

regardless of its contents or lack thereof, is sufficient to satisfy Barber.

¶ 60 Turning now to the facts of the present case, we find that Ballard’s April 20, 2010,

“Motion for Class Certification” was insufficient to “bring[] the interests of the other class

members before the court” under Barber. Barber,

. That motion was filed

contemporaneously with the complaint, before any discovery had taken place and before Ballard

had any knowledge of the class. Indeed, at that point in the litigation, Ballard had no evidence

that other class members even existed, other than speculation based on the nature of the one-page

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fax it received. Its motion was entirely devoid of any factual allegations in support of class

certification. Although it stated that “[p]laintiff will file a supporting Memorandum of Law in

due course,” Ballard never filed any such motion. It additionally never presented its motion to

the court or set a hearing date on that motion, and, in fact, the court did not rule upon the issue of

certification until nearly three years later. Under these facts, we find that, at the time Kohll’s

made its tender of $2,500, Ballard had not yet filed a motion for class certification within the

meaning of Barber.

¶ 61 Ballard’s second contention is that its claims should not be considered moot because it

pursued class certification with “sufficient diligence.” It asserts that, despite repeated delay and

refusal to cooperate on the part of Kohll’s, Ballard diligently pursued and obtained the discovery

necessary to present the court with a proper motion for class certification in November 2012.

However, the Barber court explicitly rejected the notion that a plaintiff’s diligence in pursuing

class certification will prevent its claim from being mooted if a valid tender is made prior to a

motion for class certification. Barber,

. In that case, the plaintiff alleged that

defendant’s tender was an unfair attempt to “pick off” her claim in order to avoid a class action.

. She argued that the court should apply a “pick off” exception, under which a plaintiff

who fails to move for class certification prior to a defendant’s tender may nevertheless pursue

class certification if the plaintiff has exercised reasonable diligence in that regard.

The

Barber court disagreed, stating that the “pick off” exception “has no basis in the law” and

instructing that language in prior appellate decisions relying on the “pick off” exception not be

cited. (Internal quotation marks omitted.)

; see Gatreaux v. DKW Enterprises, LLC,

(reiterating Barber’s rejection of the “pick off” rule).

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Accordingly, we must reject Ballard’s contention that its alleged diligence prevents its claim

from being mooted by Kohll’s tender.

¶ 62 Ballard’s final contention is that the sums tendered by Kohll’s were insufficient to cover

the full relief requested by Ballard in its complaint. In its three-count complaint, Ballard sought

statutory damages under the TCPA (count I), actual damages and attorney fees as permitted for

violation of the Consumer Fraud Act (count II), and damages for conversion (count III). Ballard

does not contest that the $2,500 tendered by Kohll’s is sufficient to satisfy count I, but it argues

that the amount does not satisfy counts II and III, particularly the Consumer Fraud Act’s

provision of attorney fees for prevailing plaintiffs. See Clayton v. Planet Travel Holdings, Inc.,

(award of attorney fees is allowable under Consumer Fraud

Act).

¶ 63 Kohll’s does not challenge this assertion. Indeed, at oral argument before this court,

counsel for Kohll’s conceded that its tender only pertained to count I of the complaint and did

not cover counts II and III. This is consistent with Kohll’s stance before the trial court, since,

after tendering payment to Ballard, Kohll’s moved for partial summary judgment on count I of

the complaint but did not seek summary judgment on the other two counts.

¶ 64 Based upon the foregoing, we agree with Ballard that Kohll’s tender only mooted

Ballard’s claims with respect to count I of its complaint, which leaves Ballard as an adequate

class representative with regard to counts II and III. We therefore reverse the trial court’s class

certification insofar as it pertains to count I, but we affirm in all other respects. Upon remand,

we direct the trial court to revisit the issue of class certification in light of the fact that only

counts II and III remain.

¶ 65 Affirmed in part and reversed in part; cause remanded with directions.

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