MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, Senior District Judge.
Although the litigants in this putative class action, brought under the Telephone Consumer Protection Act ("Act," 47 U.S.C. § 227(b)(3)), have waged battle on a number of fronts during the 10-1/2 months that have elapsed since it was removed from the Circuit Court of Cook County to this federal District Court, their most recent prolonged struggle has been over the hotly-contested motion of plaintiff Targin Sign Systems, Inc. ("Targin") for class certification. With counsel for defendant Preferred Chiropractic Center, Ltd. ("Preferred") having tendered its Response to Plaintiff's Motion for Class Certification on January 11, that issue—really a threshold issue, despite the length of time it has taken to reach this point—is ripe for resolution. And although a thick legal forest will have to be explored here before it is possible to emerge into the clearing of decision, the result of that exploration is a victory for Targin.
Both sides will certainly recall this Court's expression of shock at what was earlier revealed by Targin's supplementation in support of its class certification motion: Preferred's President Angie Skokos, who describes herself as Dr. Angie Skokos but who will be referred to here simply as "Skokos" (this Court's customary practice in speaking of individual parties—with no disrespect intended), had responded to Targin's first set of interrogatories with blatant lie after blatant lie—fully 19 times she swore under penalty of perjury to this identical language (of which Int. Ans. 2 is a prototype):
Twice Skokos made a shorter but equally false sworn statement (of which Int. Ans. 13 is a prototype):
And she concluded with this similar lie (Int. Ans. 23):
Now it's one of the regrettable facts of life in the legal system that clients lie. As this Court recalls, the late great legal philosopher and Second Circuit Court of Appeals Judge Jerome Frank once said essentially (perhaps in his Courts on Trial):
Most lawsuits are won on a balance of the perjury. But quite apart from this Court's disavowal of that level of cynicism, it believes that we are surely entitled to expect more and better from lawyers, whose profession creates duties and responsibilities to the legal system as well as to their clients. Sometimes those two sets of obligations create tensions, and the Rules of Professional Conduct address that difficult subject. So does Fed.R.Civ.P. ("Rule") 11(b), which deals with lawyers' written submissions in the course of litigation.
That makes the current submission by counsel for Preferred profoundly disturbing: It flouts the disclosures in Targin's supplementation, which Targin learned through discovery from Preferred itself, by advancing arguments that can best be characterized as bogus. Here's a transcript of an October 4, 2005 telephone message that Skokos conveyed to Business
Then Skokos' October 6, 2005 handwritten fax to Business to Business read:
All of that is of a piece with the text of the ad itself, which contained Skokos' literary fingerprints in the form of her handwritten editing (see the two one-page exhibits attached to this opinion). Finally, on October 12, 2005 MaxiLeads, acting for Business to Business, sent its fax to Skokos referring to "your faxing campaign" and asking for payment of $160 "before we begin your program"—a fax that was responded to that very same day by Skokos' faxing of a copy of Preferred's $168 check "for us sending 5,000 fax ads."
So what the unequivocal and undisputed facts reflect are demonstrable and repeated lies by Preferred's principal, Skokos—there isn't the slightest question not only that she ordered the "faxing campaign" and that she contemplated 5,000 fax ads, but there's not a whisper about Preferred having identified the targets of the "faxing campaign"—or indeed any of them. Nor is there a whisper about those targets, or any of them, being people who, or institutions that, had consented to Preferred's faxing them.
Indeed, a look at the content of the ad itself—a veritable prototype of a cold mailing to strangers, to hoped-for respondents, of the same kind that is seen on TV screens all the time—really negates any notions of prior consent by the fax recipients. Thus, the ad's prominent featuring of a "$22 initial consultation ($150 Value) with this coupon (expires December 1, 2005)" is obviously the exact opposite of a communication to someone who had previously consented to the fax. And relatedly, the fax covers a broad spectrum of advertised services, similar to the classic spiel of the TV pitchman, except that it is committed to paper instead of being communicated both orally and visually.
In any event, what has been said up to this point presents the canvas on which defense counsel were required to paint their response to the motion for class certification. But before that response is examined, a few words are in order about professional responsibility in that respect. First, this District Court's LR 83.51.2, mirrored in the Illinois Supreme Court's Rule of Professional Conduct 1.2, says this in subparagraphs (d) and (g):
Look as well at the relevant portion of LR 83.53.1, which is mirrored in Illinois Supreme Court Rule 3.1:
Finally, to much the same effect, LR 83.53.3 ("Conduct Before a Tribunal"), which is mirrored in Illinois Supreme Court Rule 3.3, is too lengthy to quote. But if Preferred's counsel had read and heeded the directions in all of those Rules, as this Court would urge be done now, the responsive filing that has been received from Preferred would have been far different.
This opinion turns then to that response, which is deeply troubling in a number of respects. As the ensuing discussion reflects, Preferred's opposition to class certification essentially takes the form of a disingenuous "Who, me?" (or perhaps "Who, I?") argument.
As said earlier, Preferred's own documents confirm that there is no reason not to credit the Complaint's allegations that:
Thus Preferred's challenges to the fax list, as set out at page 2 of its response, pose questions of a factual nature—essentially matters of authentication—that once again cannot justify cutting Targin and its counsel off at the pass. This current threshold stage of potential class certification is not the time or place to engage in a battle of the claimed experts, a matter that remains for the future.
What the arguments by Preferred's counsel have chosen to ignore is the fact that if this case proceeds to a judgment in favor of the plaintiff class, the class members will have the burden of establishing their respective claims, thus providing an independent verification of the elements already referred to. With that said, it is in order to take a look at the straw men that Preferred's counsel have sought to conjure up in alleged support of Preferred's position (and this time this opinion's use of "alleged" is entirely appropriate).
First as to the class certification requirement of "numerosity," Preferred's lack-of-identification argument is really frivolous. There Preferred tries to take advantage of its own misconduct in calling on Business to Business to conduct Preferred's "faxing campaign" through a Business to Business list, not a list prepared or vetted by Preferred, by a blanket cold faxing transmitted to strangers—strangers
As for "typicality" and "commonality," any claimed issue of consent by the faxees (if this Court is allowed to commit a barbarism by coining a term to describe the fax recipients) is more accurately a nonissue. Preferred is by definition the party that possesses the information needed to confirm any prior consent—if it exists, that is. And Preferred's directive to Business to Business was totally devoid of selectivity— it simply ordered a wholly blind solicitation.
Preferred attempts to point to opinions by this Court's colleagues, Judges Bucklo and Gettleman, for potential support in that regard.
Next, as to the potential hurdle presented by Rule 12(b)(3), all of Preferred's arguments about individual differences among the class members as assertedly destroying that required element of class certification have ignored two basic and perfectly obvious factors: Once again every class member who seeks recovery must show receipt of the fax, and the assertedly individualized prospect of having to prove actual damages rather than statutory damages tends to approach absolute zero on the Kelvin scale. In that second respect, any notion that meaningful actual damages would have flowed from a faxee's receipt of a single faxed ad such as Preferred's would be wholly fanciful.
Those just—discussed factors interact to quantify Preferred's potential exposure, while at the same time solidifying the threshold requirements for class certification. This Court therefore holds that Rule 23(b)(3) is also fully satisfied here.
To repeat somewhat, Preferred's quarrels with the methodology and the report of Targin's opinion witness Biggerstaff are not only premature merits-related contentions but are also wholly speculative. Preferred's counsel seek to have their client squirm out from under the consequences of its patently Act-violative conduct by pointing to problems, or more accurately putative problems, created by Preferred itself. Whatever one may think about the statute at issue in this case, Congress has made a policy judgment that this Court is duty-bound to enforce. Preferred's contentions, as conveyed by its counsel, are reminiscent of the classic bromide about the child who, having murdered both parents, asks the court for mercy on the ground that he is an orphan.
Another totally frivolous argument bears mention—one for which Preferred's counsel and not their client bear responsibility. As stated at the outset, this action was originally brought in the state court, with Targin advancing a claim under the federal Act as well as two Illinois state law claims. Preferred removed the action to this District Court "because it arises under the laws of the United States, specifically the TCPA" (Notice of Removal ("Notice") ¶ 3). Two weeks later Targin's counsel voluntarily dismissed the two state law counts, leaving alive only a claim that Preferred's own Notice had labeled as arising under federal law—as enforcing a federal statute—pure and simple. Yet last week Preferred's Response 13 said for the first time:
That is flat-out false, and counsel had to know it was false, for Targin is an Illinois corporation and Preferred's principal place of business is also in Illinois. Indeed, if jurisdiction were based on diversity (as it is not), Preferred's counsel could not have removed the case to begin with—here is the second sentence of 28 U.S.C. § 1441(b):
That then is absurdity number one in a final Preferred argument that is full of absurdities. This Court's former colleague Susan Getzendanner, who left our District Court before the drafters of the federal rules drew most of the potential venom from the fangs of Rule 11 via the 1993 amendments to that Rule, used to describe lawyers' legal frivolousness in terms of the "straight face" test: Could the lawyer keep a straight face while making the argument? Here Preferred's argument about purported diversity of citizenship flunks that test in a nanosecond. Parenthetically, even were that not the case, the purpose for which Preferred advances that meritless argument—its attempt to invoke New York law, which contains a rejection of nominal damages—would fail, because Illinois' "most significant contacts" test would clearly point to this state rather than to New York as providing the substantive rules of decision in a case governed by state law. And that is so because here is where the faxees' injury was plainly felt, not in New York where Business to Business may have originated the fax transmissions.
But before this opinion turns to the reason for so stating, counsel's effort evokes a concern that is familiar to judges but too often escapes lawyers: the potential risk to counsel when they push obviously groundless claims. That is not solely the danger of possible sanctions under Rule 11 or under other available sources (sanctions that are not assessed that frequently)—it also involves the offending counsel's possible loss of credibility, something that can cause every argument that the lawyer may put forth to be scrutinized with greater care and, perhaps, with some degree of skepticism.
But that is really a digression—this opinion must perforce turn to the seminal question of subject matter jurisdiction. After all, if Preferred had been right in its invocation of Second Circuit caselaw as the basis for calling upon New York's state law of damages, its removal action would have been improper to begin with, and this Court would have been compelled to remand this action to the Circuit Court of Cook County for lack of subject matter jurisdiction—even at this comparatively advanced stage of the litigation. That is so because that Court of Appeals is one of a half dozen that hold Act § 227(b)(3) precludes federal courts from entertaining such private actions on federal-question grounds—and remember that federal courts are duty—bound to identify and act upon such jurisdictional defects sua sponte. As Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir.2005)(internal citations and quotation marks omitted) has reconfirmed the universal teaching of earlier cases:
To review the bidding before this opinion addresses the relevant caselaw, it will be remembered that Targin originally brought this action by calling into play the literal reading of Act § 227(b)(3), which by its terms provides for private causes of action only in state courts (an admittedly counterintuitive provision in a federal statute). In its effort to invoke that literal limitation, Targin said in its Complaint ¶ 8:
Despite that assertion, Preferred's Notice of Removal said it brought the case here based on 28 U.S.C. § 1331, the federal-question provision of Title 28 that confers on District Courts "original jurisdiction of all actions arising under the laws of the United States." But now, apparently because Preferred's counsel believe the client's jurisdictional bread is buttered on the diversity side instead, counsel has shifted to that very different position of claimed diversity-based jurisdiction.
In that regard the Second Circuit has already been spoken of as having more than a substantial amount of company. Most recently the Tenth Circuit in US Fax Law Ctr., Inc. v. iHire, Inc., 476 F.3d 1112, 1115 (10th Cir.2007)(emphasis added) referred to an earlier Colorado District Court opinion in which "the district court below held that it lacked subject matter jurisdiction over the TCPA claims because six federal circuit courts have concluded, based on § 227(b)(3) of the TCPA, that Congress intended to preclude federal question jurisdiction over TCPA claims."
But that weight of authority elsewhere is entirely beside the mark here, for Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir.2005) has found all those courts to be out of step. After citing a number of the opinions from the six other Courts of Appeals that have said "No" in response to "the question whether suit to enforce the Telephone Consumer Protection Act may be filed or removed under the federal-question jurisdiction," (id. at 450), Brill then went on to analyze the question (id. at 450-51) and to reach the opposite conclusion (id. at 451).
This Court is of course bound by Brill,
This has been a lengthy excursion. Where it ends is in the grant of Targin's motion for class certification. This opinion will be distributed at or just before the previously scheduled January 22 status hearing, at which time further proceedings to implement the class certification will be discussed.
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