Burr & Forman

03.29.2013   |   Blog Articles, Consumer Finance Litigation, Illinois, TCPA

Illinois District Court Certifies TCPA Class Over Objection from Defendant

In Florence Mussat, M.D., S.C. v. Global Healthcare Resource, LLC, 2013 WL 1087551 (N.D. Ill. March 13, 2013), the North District Court of Illinois for the Eastern Division granted a Motion for Class Certification for claims relating to alleged Telephone Consumer Protection Act (“TCPA”) violations and state law claims. In February of 2011, Defendant, Global Healthcare Resource, LLC (“GHR”) sent a fax to Plaintiff, Florence Mussat, M.D., S.C. (“Mussat”), on behalf of Physician Billing Services (“PBS”), stating that PBS is a subsidiary of GHR that provides medical billing and other services to small and medium size practices. Id. Mussat instituted a class action alleging that GHR violated the TCPA by sending unsolicited faxes to Mussat and to other the class members with whom GHR had not established a relationship. Id. at 2. Mussat also brought a claim for a violation of the Illinois Consumer Fraud Act (“ICFA”) and a claim for conversion under Illinois common law. Id. As to class certification under Federal Rule of Civil Procedure 23, the Court held that all the requirements of Rule 23(a) and the predominance requirement of Rule 23(b) had been satisfied. Id. at 4-7. The Court held that the Plaintiff’s evidence, namely an anauthenticated fax log, demonstrated that the size of the proposed class met the numerosity requirement. Id. at 4. The Court explicitly rejected GHR’s arguments that Mussat had not proven that the faxes on the fax log represented unsolicited faxes on the basis that GHR’s argument went to the merits of the TCPA claims. Id. Similarly, the Court found that Mussat’s claims were typical of the class and again rejected GHA’s contention that Mussat had not demonstrated that the faxes were unsolicited. Id. at 5. The Court also found that Mussat could adequately represent the interests of the class. Id. Addressing commonality under Rule 23(a) and predominance under Rule 23(b) together, the Court found that, despite the fact that the case could potentially present individual cases as to the damages of each class member or as to each individual’s consent, GHR had not produced evidence demonstrating that individual questions of consent predominated over common questions of law and fact. Id. at 6. In addition, the Court noted that other district courts have held that “common issues predominate in TCPA cases even where some recipients may have given permission to the defendant” to send faxes. Id. at 7. The Court also held that a class action was the superior method for adjudicating the claims of the class. Id. As a result of the foregoing, the Court granted Mussat’s motion and certified the class. Id. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

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