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Levine Hat Co. v. Innate Intelligence, LLC

United States District Court, E.D. Missouri, Eastern Division

February 9, 2018

LEVINE HAT CO., on behalf of itself and all other similarly situated, Plaintiff,
INNATE INTELLIGENCE, LLC, et al., Defendants.



         Plaintiff Levine Hat Co. filed this putative class action lawsuit against defendants Innate Intelligence LLC d/b/a Innate Wellness Centers (“Innate”), Nepute Enterprises LLC (“Nepute”), and ProFax, Inc.[1] alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Plaintiff has moved for class certification (#93). Only defendant ProFax has responded in opposition to the motion.

         I. Background

         Defendant Innate is an umbrella organizations for advertising and managing chiropractic clinics, operating 12 chiropractic offices in four markets across the United States. Plaintiff contends that Innate contracted with defendant ProFax to send tens of thousands of unsolicited fax advertisements to persons with whom Innate had no preexisting relationship of any kind. On July 5, 2016, defendant Innate, through facsimile broadcaster ProFax, sent plaintiff a fax advertising “a FREE Lunch ‘n Learn on Stress Management for your employees.” The following notice appears at the bottom of the fax:

To opt out from future faxes go to www.removemyfax number and enter PIN# 17204, or call 800-321-4433. The recipient may make a request to the sender not to send any future faxes and failure to comply with the request within 30 days is unlawful.

(Doc. # 27-1). Plaintiff alleges that the opt-out notice does not comply with the minimum requirements of 47 C.F.R. § 64.1200. On July 12, 2016, plaintiff initiated this action, under the TCPA, on behalf of itself and a purported nationwide class. Plaintiff alleges it was annoyed and disturbed by receiving the fax from Innate, that it lost employee time in reviewing and disposing of the funk fax, and that it wasted the use of its fax machine and ink and paper used to print the junk fax. Through discovery, plaintiff has obtained documents that purportedly shows all the broadcast transmissions Innate hired ProFax to make. The transmission logs show that 9, 553 fax transmissions were sent by ProFax to 8, 542 persons in Illinois, Indiana, Missouri, Washington, and Wisconsin. Profax also produced a list of 1, 693 recipients who opted out of receiving Innate's faxes, which means those recipients certainly received a fax with Innate's unique PIN. Of those 1, 693 recipients, 1, 489 have fax numbers that do not appear among the successful transmissions listed in the five transmission logs produced by Innate. Thus the total number of Innate fax recipients is 10, 031 according to plaintiff.

         Plaintiff has moved for class certification under Federal Rule of Civil Procedure 23 of the following class:

All persons who received a facsimile transmission sent by ProFax, Inc., on behalf of Innate Intelligence LLC or its chiropractic clinics between January 27, 2016 and July 13, 2016, as confirmed by either:
(1) presence on a facsimile transmission log produced by Innate Intelligence LLC in this case showing one or more transmissions “sent” and complete”; or
(2) presence on a list of those who opted out from receiving future faxes from Innate Intelligence LLC, produced by ProFax, Inc. in this case.

(See #93 at ¶ 5.)

         II. Legal Standard

         “The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. To come within the exception, a party seeking to maintain a class action must affirmatively demonstrate his compliance with [Federal Rule of Civil Procedure] 23.” Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (citations omitted). Rule 23(a) establishes four prerequisites for class certification: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).

         “The preliminary inquiry of the class certification stage may require the court to resolve disputes going to the factual setting of the case, and such disputes may overlap the merits of the case.” Luiken v. Domino's Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013) (internal quotation marks and citation omitted). “[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Comcast, 133 S.Ct. at 1432 (internal quotation marks and citation omitted). A plaintiff ...

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