Case: 1:22-cv-02561 Document #: 1 Filed: 05/16/22 Page 1 of 13 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
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`Civil Action No.
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`CLASS ACTION
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`CLASS ACTION COMPLAINT
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`DANIEL W. HAMBLIN, D.V.M., P.C. d/b/a
`ALPINE ANIMAL HOSPITAL, LTD., an
`Illinois professional corporation, individually
`and as the representative of a class of similarly-
`situated persons,
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`AMERICAN IV PRODUCTS, INC., a
`Maryland corporation,
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`Plaintiff,
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`v.
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` Defendant.
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`Plaintiff, DANIEL W. HAMBLIN, D.V.M., P.C. d/b/a ALPINE ANIMAL HOSPITAL,
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`LTD., (“Plaintiff”), brings this action on behalf of itself and all others similarly situated, through
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`its attorneys, and except as to those allegations pertaining to Plaintiff or its attorneys, which
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`allegations are based upon personal knowledge, alleges the following upon information and
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`belief against Defendant, AMERICAN IV PRODUCTS, INC. (“Defendant”):
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`PRELIMINARY STATEMENT
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`1.
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`This case challenges Defendant’s practice of sending unsolicited advertisements
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`by facsimile.
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`2.
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`The federal Telephone Consumer Protection Act of 1991, as amended by the Junk
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`Fax Prevention Act of 2005, 47 U.S.C. § 227 (collectively, “TCPA” or the “Act”), and the
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`regulations promulgated under the Act, prohibit a person or entity from sending fax
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`advertisements without the recipient’s “prior express invitation or permission.” The TCPA
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`provides a private right of action and provides minimum statutory damages of $500 per
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`violation.
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`Case: 1:22-cv-02561 Document #: 1 Filed: 05/16/22 Page 2 of 13 PageID #:2
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`3.
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`On or about February 24, 2022 and April 27, 2022, Defendant sent Plaintiff two
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`unsolicited fax advertisement in violation of the TCPA (the “Faxes”), true and correct copies of
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`which are attached hereto as Exhibit A and Exhibit B, respectively, and made a part hereof.
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`4.
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`Upon information and belief, Defendant sent the Faxes and other facsimile
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`transmissions of unsolicited advertisements to Plaintiff and the Class in violation of the TCPA.
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`5.
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`The Faxes describe the commercial availability or quality of Defendant’s
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`property, goods, or services, namely, Defendant’s Industrial PowerMATE® (Exhibit A) and it’s
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`IVetMATE™ IV Fluid Warmer (Exhibit B).
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`6.
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`Plaintiff alleges on information and belief that Defendant has sent, and continues
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`to send, unsolicited advertisements via facsimile transmission in violation of the TCPA,
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`including but not limited to the advertisements sent to Plaintiff.
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`7.
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`Unsolicited faxes damage their recipients. A junk fax recipient loses the use of its
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`fax machine, paper, and ink toner. An unsolicited fax wastes the recipient’s valuable time that
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`would have been spent on something else. A junk fax intrudes into the recipient’s seclusion and
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`violates the recipient’s right to privacy. Unsolicited faxes occupy fax lines, prevent fax machines
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`from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue
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`wear and tear on the recipients’ fax machines, and require additional labor to attempt to discern
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`the source and purpose of the unsolicited message.
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`8.
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`On behalf of itself and all others similarly situated, Plaintiff brings this case as a
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`class action asserting claims against Defendant under the TCPA. Plaintiff seeks to certify a class
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`which were sent the Faxes and other unsolicited fax advertisements that were sent without prior
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`express invitation or permission and without compliant opt-out language (to the extent the
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`affirmative defense of “established business relationship” is alleged). Plaintiff seeks statutory
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`damages for each violation of the TCPA and injunctive relief.
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`9.
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`Plaintiff is informed and believes, and upon such information and belief avers,
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`that this action is based upon a common nucleus of operative facts because the facsimile
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`transmissions at issue were and are being done in the same or similar manner. This action is
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`based on the same legal theory, namely liability under the TCPA. This action seeks relief
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`expressly authorized by the TCPA: (i) injunctive relief enjoining Defendant, its employees,
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`agents, representatives, contractors, affiliates, and all persons and entities acting in concert with
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`them, from sending unsolicited advertisements in violation of the TCPA; and (ii) an award of
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`statutory damages in the minimum amount of $500 for each violation of the TCPA, and to have
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`such damages trebled, as provided by § 227(b)(3) of the Act in the event the Court determines
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`any TCPA violations were willful or knowing.
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`JURISDICTION AND VENUE
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`10.
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`This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 47
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`U.S.C. § 227.
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`11.
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`This Court has personal jurisdiction over Defendant because Defendant transacts
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`business within this judicial district, has made contacts within this judicial district, and/or has
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`committed tortious acts within this judicial district.
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`PARTIES
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`12.
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`Plaintiff, DANIEL W. HAMBLIN, D.V.M., P.C., is an Illinois professional
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`corporation that does business as ALPINE ANIMAL HOSPITAL, LTD. Plaintiff’s principal
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`place of business is within this judicial district.
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`13.
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`On information and belief, Defendant, AMERICAN IV PRODUCTS, INC., is a
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`Maryland corporation with its principal office in Harmans, MD.
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`Case: 1:22-cv-02561 Document #: 1 Filed: 05/16/22 Page 4 of 13 PageID #:4
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`FACTS
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`14.
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`On or about February 24, 2022 and April 27, 2022, Defendant sent the Faxes to
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`Plaintiff using a telephone facsimile machine, computer, or other device. (Exhibits A and B).
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`15.
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`The February 24, 2022 Fax states, in part:
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`Industrial PowerMATE®
`Safe & Convenient Access to Outlets…
`This versatile power relocation solution, provides cord management and increases equipment
`mobility in a variety of settings.
`• Mounts on a pole, wall or the leg of a cart
`• Attaches and detaches in seconds and requires no tools
`• 15 foot cord increases mobility of equipment when mounted to a roll-away pole
`• UL962A Listed
`• One-year warranty
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`Call us today 800.913.6215 or visit us at www.aiv-vet.com
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`(Exhibit A)
`The April 27, 2022 Fax states, in part:
`16.
`IVetMATE™
`IV Fluid Warmer
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`Reliable & Accurate
` Fluid Warming…
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`The IVetMATE™ IS FOR Veterinary Use Only.
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`www.aiv-vet.com ● 800.913.5419 ● sales@aiv.vet-com
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`(Exhibit B)
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`Defendant created or made the Faxes, or directed a third party to do so, and the
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`17.
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`Faxes were sent by or on behalf of Defendant with Defendant’s knowledge and authorization.
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`18.
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`Plaintiff did not give Defendant “prior express invitation or permission” to send
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`the Faxes.
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`19.
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`On information and belief, Defendant faxed the same and other unsolicited
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`facsimiles advertisements without first receiving the recipients’ prior express invitation or
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`permission, and without the required opt-out language, see 47 U.S.C. § 227(b)(1)(C) and 47
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`C.F.R. § 64.1200(a)(4), thereby precluding the affirmative defense of established business
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`relationship.
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`20.
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`There is no reasonable means for Plaintiff (or any other class member) to avoid
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`receiving unauthorized fax advertisements. Fax machines are left on and ready to receive the
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`urgent communications their owners desire to receive.
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`21.
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`The Faxes do not display a proper opt-out notice as required by 47 U.S.C.
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`§ 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4).
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`CLASS ACTION ALLEGATIONS
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`In accordance with Fed. R. Civ. P. 23(b)(3), Plaintiff brings this class action
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`22.
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`pursuant to the TCPA, on behalf of the following class:
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`All persons who (1) on or after four years prior to the filing of this action, (2)
`were sent telephone facsimile messages of material advertising the commercial
`availability or quality of any property, goods, or services by or on behalf of
`Defendant, (3) from whom Defendant did not obtain “prior express invitation
`or permission” to send fax advertisements, or (4) with whom Defendant did not
`have an established business relationship, or (5) where the fax advertisements
`did not include an opt-out notice compliant with 47 C.F.R. § 64.1200(a)(4).
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`Excluded from the Class are Defendant, its employees and agents, and members of the Judiciary.
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`Plaintiff seeks to certify a class which includes, but is not limited to, the Fax advertisements sent
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`to Plaintiff. Plaintiff reserves the right to amend the class definition upon completion of class
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`certification discovery.
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`23.
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`Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon
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`such information and belief avers, that the number of persons and entities of the Plaintiff Class is
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`numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and
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`upon such information and belief avers, that the number of class members is at least forty.
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`24.
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`Commonality (Fed. R. Civ. P. 23(a)(2)): Common questions of law and fact
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`apply to the claims of all class members. Common material questions of fact and law include, but
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`are not limited to, the following:
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`(a) Whether the Fax(es) and other faxes sent during the class period constitute
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`advertisements under the TCPA and its implementing regulations;
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`(b) Whether each Defendant meets the definition of “sender” for direct TCPA
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`liability, meaning a “person or entity on whose behalf a facsimile unsolicited
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`advertisement is sent or whose goods or services are advertised or promoted in the
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`unsolicited advertisement,” 47 C.F.R. § 64.1200(f)(10);
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`(c) Whether Defendant had prior express invitation or permission to send
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`Plaintiff and the class fax advertisements;
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`(d) Whether the Fax(es) contains an “opt-out notice” that complies with the
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`requirements of § (b)(1)(C)(iii) of the Act, and the regulations promulgated thereunder,
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`and the effect of the failure to comply with such requirements;
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`(e) Whether Defendant should be enjoined from faxing advertisements in the
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`future;
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`(f) Whether Plaintiff and the other members of the class are entitled to
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`statutory damages; and
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`(g) Whether the Court should award treble damages.
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`25.
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`Typicality (Fed. R. Civ. P. 23(a)(3)): Plaintiff's claims are typical of the claims of
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`all class members. Plaintiff received the same or similar faxes as the Fax sent by or on behalf of
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`Defendant advertising the commercial availability or quality of Defendant’s property, goods, or
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`services during the Class Period. Plaintiff is making the same claims and seeking the same relief
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`for itself and all class members based upon the same federal statute. Defendant has acted in the
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`same or in a similar manner with respect to Plaintiff and all the class members by sending
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`Plaintiff and each member of the class the same or similar faxes or faxes which did not contain
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`the proper opt-out language or were sent without prior express invitation or permission.
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`26.
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`Fair and Adequate Representation (Fed. R. Civ. P. 23(a)(4)): Plaintiff will fairly
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`and adequately represent and protect the interests of the class. Plaintiff is interested in this
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`matter, has no conflicts, and has retained experienced class counsel to represent the class.
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`27.
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`Predominance and Superiority (Fed. R. Civ. P. 23(b)(3)): Common questions of
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`law and fact predominate over any questions affecting only individual members, and a class
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`action is superior to other methods for the fair and efficient adjudication of the controversy
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`because:
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`(a)
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`Proof of the claims of Plaintiff will also prove the claims of the class
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`without the need for separate or individualized proceedings;
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`(b)
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`Evidence regarding defenses or any exceptions to liability that Defendant
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`may assert and attempt to prove will come from Defendant’s records and will not require
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`individualized or separate inquiries or proceedings;
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`(c) Defendant has acted and are continuing to act pursuant to common
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`policies or practices in the same or similar manner with respect to all class members;
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`(d)
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`The amount likely to be recovered by individual class members does not
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`support individual litigation. A class action will permit a large number of relatively small
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`claims involving virtually identical facts and legal issues to be resolved efficiently in one
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`proceeding based upon common proofs; and
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`(e)
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`This case is inherently manageable as a class action in that:
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`(i)
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`Defendant identified persons to receive the Fax transmissions and
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`it is believed that Defendant’s and/or Defendant’s agents’ computers and business
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`records will enable Plaintiff to readily identify class members and establish
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`liability and damages;
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`(ii)
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`Liability and damages can be established for Plaintiff and the class
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`with the same common proofs;
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`(iii)
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`Statutory damages are provided for in the statute and are the same
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`for all class members and can be calculated in the same or a similar manner;
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`(iv) A class action will result
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`in an orderly and expeditious
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`administration of claims and it will foster economics of time, effort, and expense;
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`(v)
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`A class action will contribute
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`to uniformity of decisions
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`concerning Defendant’s practices; and
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`(vi) As a practical matter, the claims of the class are likely to go
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`unaddressed absent class certification.
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`Claim for Relief for Violation of the TCPA, 47 U.S.C. § 227 et seq.
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`28.
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`The TCPA makes it unlawful for any person to “use any telephone facsimile
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`machine, computer or other device to send, to a telephone facsimile machine, an unsolicited
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`advertisement . . . .” 47 U.S.C. § 227(b)(1)(C).
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`29.
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`The TCPA defines “unsolicited advertisement” as “any material advertising the
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`commercial availability or quality of any property, goods, or services which is transmitted to any
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`person without that person's prior express invitation or permission, in writing or otherwise.”
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`47 U.S.C. § 227(a)(5).
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`29. Opt-Out Notice Requirements. The TCPA strengthened the prohibitions against
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`the sending of unsolicited advertisements by requiring, in § (b)(1)(C)(iii) of the Act, that senders
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`of faxed advertisements place a clear and conspicuous notice on the first page of the transmission
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`that contains the following among other things (hereinafter collectively the “Opt-Out Notice
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`Requirements”):
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`(1)
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`A statement that the recipient is legally entitled to opt-out of receiving
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`future faxed advertisements – knowing that he or she has the legal right to request an opt-
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`out gives impetus for recipients to make such a request, if desired;
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`(2)
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`A statement that the sender must honor a recipient’s opt-out request within
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`30 days and the sender’s failure to do so is unlawful – thereby encouraging recipients to
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`opt-out, if they did not want future faxes, by advising them that their opt-out requests will
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`have legal “teeth”;
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`(3)
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`A statement advising the recipient that he or she may opt-out with respect
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`to all of his or her facsimile telephone numbers and not just the ones that receive a faxed
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`advertisement from the sender – thereby instructing a recipient on how to make a valid
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`opt-out request for all of his or her fax machines;
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`(4)
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`The opt-out language must be conspicuous.
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`The requirement of (1) above is incorporated from § (b)(D)(ii) of the Act. The
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`requirement of (2) above is incorporated from § (b)(D)(ii) of the Act and the rules and
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`regulations of the Federal Communications Commission (the “FCC”) in ¶ 31 of its 2006 Report
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`and Order, 21 F.C.C.R. 3787, 2006 WL 901720, which rules and regulations took effect on
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`August 1, 2006). The requirements of (3) above are contained in § (b)(2)(E) of the Act and
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`incorporated into the Opt-Out Notice Requirements via § (b)(2)(D)(ii). Compliance with the Opt-
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`Out Notice Requirements is neither difficult nor costly. The Opt-Out Notice Requirements are
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`important consumer protections bestowed by Congress upon the owners of the telephone lines
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`and fax machines giving them the right, and means, to stop unwanted faxed advertisements.
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`30.
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`2006 FCC Report and Order. The TCPA, in § (b)(2) of the Act, directed the
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`FCC to implement regulations regarding the TCPA, including the TCPA’s Opt-Out Notice
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`Requirements, and the FCC did so in its 2006 Report and Order, which in addition provides
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`among other things:
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`A.
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`The definition of, and the requirements for, an established business
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`relationship for purposes of the first of the three prongs of an exemption to liability under
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`§ (b)(1)(C)(i) of the Act and provides that the lack of an “established business
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`relationship” precludes the ability to invoke the exemption contained in § (b)(1)(C) of the
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`Act (See 2006 Report and Order ¶¶ 8-12 and 17-20);
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`B.
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`The required means by which a recipient’s facsimile telephone number
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`must be obtained for purposes of the second of the three prongs of the exemption under §
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`(b)(1)(C)(ii) of the Act and provides that the failure to comply with these requirements
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`precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See
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`2006 Report and Order ¶¶ 13-16);
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`C.
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`The things that must be done in order to comply with the Opt-Out Notice
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`Requirements for the purposes of the third of the three prongs of the exemption under §
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`(b)(1)(C)(iii) of the Act and provides that the failure to comply with these requirements
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`precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See
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`2006 Report and Order ¶¶ 24-34);
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`31.
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`The Faxes. Defendant sent the Faxes on or about February 24, 2022 and April
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`27, 2022, via facsimile transmission from telephone facsimile machines, computers, or other
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`devices to the telephone lines and facsimile machines of Plaintiff and members of the Plaintiff
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`Class. The Faxes constitute advertisements under the Act and the regulations implementing the
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`Act. Defendant failed to comply with the Opt-Out Requirements in connection with the Faxes.
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`The Faxes were transmitted to persons or entities without their prior express invitation or
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`permission and Defendant is precluded from asserting that Defendant had an established business
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`relationship with Plaintiff and other members of the class, because of the failure to comply with
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`the Opt-Out Notice Requirements. By virtue thereof, Defendant violated the TCPA and the
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`regulations promulgated thereunder by sending the Fax via facsimile transmission to Plaintiff
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`and members of the Class. Plaintiff seeks to certify a class which includes the Faxes and all
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`others sent during the four years prior to the filing of this case through the present.
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`32.
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`Defendant’s Other Violations. Plaintiff is informed and believes, and upon such
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`information and belief avers, that during the period preceding four years of the filing of this
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`Complaint and repeatedly thereafter, Defendant has sent via facsimile transmission from
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`telephone facsimile machines, computers, or other devices to telephone facsimile machines of
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`members of the Plaintiff Class other faxes that constitute advertisements under the TCPA and its
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`implementing regulations that were transmitted to persons or entities without their prior express
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`invitation or permission and without compliant opt-out notice. By virtue thereof, Defendant
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`violated the TCPA and the regulations promulgated thereunder.
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`33.
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`The TCPA provides a private right of action to bring this action on behalf of
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`Plaintiff and the Class to redress Defendant’s violations of the Act, and provides for statutory
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`damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is appropriate. Id.
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`34.
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`The TCPA is a strict liability statute, so Defendant is liable to Plaintiff and the
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`other class members even if their actions were only negligent.
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`35.
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`Defendant knew or should have known that (a) Plaintiff and the other class
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`members had not given prior express invitation or permission for Defendant or anybody else to
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`send faxes advertising the commercial availability or quality of Defendant’s property, goods, or
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`services, namely its custom calendars; (b) Plaintiff and the other class members did not have an
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`established business relationship; (c) Defendant transmitted advertisements; (d) the Fax does not
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`contain the required Opt-Out Notice, thereby precluding the affirmative defense of established
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`business relationship; and (e) Defendant’s transmission of fax advertisements without prior
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`express invitation or permission was unlawful.
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`36.
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`Defendant’s actions injured Plaintiff and the other class members. Receiving
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`Defendant’s junk faxes caused Plaintiff and the other recipients to lose paper and toner
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`consumed in the printing of Defendant’s faxes. Moreover, Defendant’s faxes used Plaintiff's and
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`the other class members’ telephone lines and fax machines. Defendant’s faxes cost Plaintiff and
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`the other class members time, as Plaintiff and the other class members and their employees
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`wasted their time receiving, reviewing, and routing Defendant’s unauthorized faxes. That time
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`otherwise would have been spent on Plaintiff's and the other class members’ business or personal
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`activities. Defendant’s faxes intruded into Plaintiff’s and other class members’ seclusion and
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`violated their right to privacy, including their interests in being left alone. Finally, the injury and
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`property damage sustained by Plaintiff and the other class members from the sending of
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`Defendant’s advertisements occurred outside of Defendant’s premises.
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`WHEREFORE, Plaintiff, DANIEL W. HAMBLIN, D.V.M., P.C. d/b/a ALPINE
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`ANIMAL HOSPITAL, LTD., individually and on behalf of all others similarly situated,
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`demands judgment in its favor and against Defendant, AMERICAN IV PRODUCTS, INC., as
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`follows:
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`A.
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`That the Court adjudge and decree that the present case may be properly
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`maintained as a class action, appoint Plaintiff as the representative of the class, and appoint
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`Plaintiff’s counsel as counsel for the class;
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`B.
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`That the Court award statutory liquidated damages in the sum of five hundred
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`dollars ($500.00) for each violation, and that the Court award treble damages of $1,500.00 if the
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`violations are deemed “willful or knowing”;
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`C.
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`D.
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`That Court enjoin Defendant from additional violations; and
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`That the Court award pre-judgment interest, costs, and such further relief as the
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`Court may deem just and proper.
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`By:
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`Respectfully submitted,
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`DANIEL W. HAMBLIN, D.V.M., P.C. d/b/a
`ALPINE ANIMAL HOSPITAL, LTD.,
`individually, and as the representative of a class of
`similarly-situated persons
`
`/s/ Ryan M. Kelly
`Ryan M. Kelly
`ANDERSON + WANCA
`3701 Algonquin Road, Suite 500
`Rolling Meadows, IL 60008
`Telephone: 847/368-1500
`Fax: 847/368-1501
`rkelly@andersonwanca.com
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`13
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