Case: 5:21-cv-00997-JRA Doc #: 1 Filed: 05/13/21 1 of 6. PageID #: 1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`
`)
`)
`
`Civil Action No.
`
`CLASS ACTION
`
`COMPLAINT
`
`)))))))))
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`))
`
`FAMILY HEALTH PHYSICAL
`MEDICINE, LLC, individually and as the
`representative of a class of similarly-situated
`persons,
`
`Plaintiff,
`
`v.
`
`BROOKDALE SENIOR LIVING, INC.,
`
` Defendant.
`
`Pursuant to Rules 7 and 8 of the Federal Rules of Civil Procedure, Plaintiff Family Health
`
`Physical Medicine, LLC (“Family Health”) alleges the following against Defendant Brookdale
`
`Senior Living, Inc. (“Brookdale Senior Living”).
`
`PARTIES
`
`1.
`
`Family Health
`
`is
`
`an Ohio
`
`corporation
`
`that operates
`
`a physical
`
`medicine/chiropractic clinic in Alliance, Ohio.
`
`2.
`
`Brookdale Senior Living is a Delaware corporation with its principal place of
`
`business in Tennessee.
`
`3.
`
`Brookdale Senior Living is a for-profit corporation that derives revenue from the
`
`operation of assisted living facilities in Ohio.
`
`4.
`
`Brookdale Senior Living owns and/or operates the assisted living facility located
`
`at 1277 South Sawburg Ave. in Alliance, Ohio 44601.
`
`FACTS
`
`5.
`
`On July 12, 2019, Family Health received a document on its fax machine (“the
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`
`)
`)
`
`Civil Action No.
`
`CLASS ACTION
`
`COMPLAINT
`
`)))))))))
`
`
`
`
`
`))
`
`FAMILY HEALTH PHYSICAL
`MEDICINE, LLC, individually and as the
`representative of a class of similarly-situated
`persons,
`
`Plaintiff,
`
`v.
`
`BROOKDALE SENIOR LIVING, INC.,
`
` Defendant.
`
`Pursuant to Rules 7 and 8 of the Federal Rules of Civil Procedure, Plaintiff Family Health
`
`Physical Medicine, LLC (“Family Health”) alleges the following against Defendant Brookdale
`
`Senior Living, Inc. (“Brookdale Senior Living”).
`
`PARTIES
`
`1.
`
`Family Health
`
`is
`
`an Ohio
`
`corporation
`
`that operates
`
`a physical
`
`medicine/chiropractic clinic in Alliance, Ohio.
`
`2.
`
`Brookdale Senior Living is a Delaware corporation with its principal place of
`
`business in Tennessee.
`
`3.
`
`Brookdale Senior Living is a for-profit corporation that derives revenue from the
`
`operation of assisted living facilities in Ohio.
`
`4.
`
`Brookdale Senior Living owns and/or operates the assisted living facility located
`
`at 1277 South Sawburg Ave. in Alliance, Ohio 44601.
`
`FACTS
`
`5.
`
`On July 12, 2019, Family Health received a document on its fax machine (“the
`
`
`
`Case: 5:21-cv-00997-JRA Doc #: 1 Filed: 05/13/21 2 of 6. PageID #: 2
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`Brookdale Fax”) touting the facility located at 1277 South Sawburg Ave. in Alliance, Ohio
`
`44601 (“the Brookdale Alliance facility”).
`
`6.
`
`The Brookdale Fax invited recipients to tour the facility “to meet our staff”, “learn
`
`more about how we will serve your clients,” and offered “a complimentary pizza to-go” to entice
`
`the recipients to accept the invitation.
`
`7.
`
`The Brookdale Fax, which was not addressed to anyone, was targeted at medical
`
`providers such as Family Health to generate referrals or other interest in the Brookdale Alliance
`
`facility.
`
`8.
`
`The Brookdale Fax was transmitted to Family Health’s fax number and received
`
`by Family Health’s fax machine. Upon receiving this transmission, Family Health’s fax machine
`
`printed the Brookdale fax onto paper using ink and toner.
`
`CLAIM FOR RELIEF – VIOLATION OF THE TCPA
`
`9.
`
`47 U.S.C. § 227 is a federal law that is commonly known as the Telephone
`
`Consumer Protection Act (“TCPA”) or Junk Fax Prevention Act (“JFPA”).
`
`10.
`
`The TCPA generally prohibits the sending of unsolicited advertisements via
`
`facsimile. Specifically, 47 U.S.C. § 227(b)(1)(C) states, in part, as follows:
`
`It shall be unlawful for any person . . . to use any telephone
`facsimile machine, computer or other device to send, to a
`telephone
`facsimile machine, an unsolicited advertisement
`unless— (i) the unsolicited advertisement is from a sender with an
`established business relationship with the sender . . . and (iii) the
`unsolicited advertisement contains a notice meeting
`the
`requirements under paragraph (2)(D).
`
`11.
`
`47 U.S.C. § 227(a)(5) of the TCPA defines the term “unsolicited advertisement”
`
`as follows:
`
`‘unsolicited advertisement’ means any material
`term
`The
`advertising the commercial availability or quality of any property,
`
`2
`
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`Case: 5:21-cv-00997-JRA Doc #: 1 Filed: 05/13/21 3 of 6. PageID #: 3
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`goods, or services which is transmitted to any person without that
`person’s prior express invitation or permission, in writing or
`otherwise.
`
`12.
`
`Paragraph (b)(2)(D) of the TCPA sets forth the requirements for an opt-out notice
`
`on fax advertisements. These requirements include, among others, that “the notice is clear and
`
`conspicuous and on the first page of the unsolicited advertisement” and that “the notice states
`
`that the recipient may make a request to the sender of the unsolicited advertisement not to send
`
`any future unsolicited advertisements to a telephone facsimile machine and that failure to
`
`comply, within the shortest reasonable time, . . . is unlawful.”
`
`13.
`
`The Brookdale Fax advertised the commercial availability and/or quality of the
`
`services of Brookdale Senior Living in regard to the Brookdale Alliance facility.
`
`14. Brookdale Senior Living did not obtain express permission from Family Health
`
`before transmitting the Brookdale Fax to the fax number/fax machine of Family Health.
`
`15.
`
`The Brookdale Fax did not contain a notice that met the requirements of
`
`Paragraph (b)(2)(D) of the TCPA.
`
`CLASS ACTION ALLEGATIONS
`
`16.
`
`Family Health brings this action on behalf of the following persons: “All persons
`
`who (1) on or after four years prior to the filing of this action; (2) were sent the Brookdale Fax or
`
`similar material; (3) via facsimile; (4) and for whom Brookdale Senior Living has no documents
`
`purporting
`
`to show
`
`the
`
`intended recipient’s express permission
`
`to receive facsimile
`
`advertisements from Brookdale Senior Living. The persons who meet these criteria are the
`
`“putative class members”.
`
`3
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`Case: 5:21-cv-00997-JRA Doc #: 1 Filed: 05/13/21 4 of 6. PageID #: 4
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`17.
`
`Numerosity: Based on information, belief, and the appearance of the Brookdale
`
`Fax, Brookdale Senior Living sent the Brookdale Fax to numerous persons via their fax
`
`numbers/fax machines.
`
`18.
`
`Commonality: Common questions of law and fact apply to the claims of the
`
`putative class members. These include the following:
`
`“unsolicited
`an
`is
`the Brookdale Fax
`(a) Whether
`advertisement” within the meaning of the TCPA;
`
`(b) Whether Brookdale Senior Living is the “sender” of the
`Brookdale Fax within the meaning of the TCPA;
`
`(c) Whether Brookdale Senior Living obtained “express
`invitation or permission” within the meaning of the TCPA
`from
`the recipients of
`the Brookdale Fax prior
`to
`transmitting it to them via their fax numbers/fax machines;
`
`(d) Whether the Brookdale Fax contained an opt-out notice that
`complied with the requirements of the TCPA; and
`
`(e) Whether Brookdale Senior Living sent the Brookdale Fax
`intentionally, was aware of the TCPA at the time, and/or
`violated the TCPA knowingly.
`
`20.
`
`Typicality: Family Health has the same claim under the same federal statute as the
`
`other putative class members for their receipt of the Brookdale Fax (and any similar facsimiles).
`
`Family Health also has the same damages as the other putative class members for the alleged
`
`violation(s) of the TCPA by Brookdale Senior Living.
`
`21.
`
`Adequacy: Family Health has no interests in conflict with the putative class
`
`members, has the resources and inclination to prosecute this action to completion, and has
`
`retained experienced and competent counsel to assist it in doing so.
`
`22.
`
`Predominance: The questions of law and fact common to the putative class
`
`members predominate over any questions affecting only individual members because:
`
`4
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`Case: 5:21-cv-00997-JRA Doc #: 1 Filed: 05/13/21 5 of 6. PageID #: 5
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`(a)
`
`(b)
`
`(c)
`
`(d)
`
`Family Health’s claim depends on the same factual and
`legal issues as the claims of the other putative class
`members;
`
`the evidence supporting Brookdale Senior Living’s likely
`defenses will come solely from Brookdale Senior Living’s
`own records and will not require any information or
`inquiries from individual class members;
`
`the damages for the alleged violation(s) of the TCPA by
`Brookdale Senior Living are set by statute and, therefore,
`will be the same for each and every member of the putative
`class; and
`
`the identity of the putative class members can be readily
`ascertained from Brookdale Senior Living’s computer,
`phone, or other business records.
`
`23.
`
`Superiority: A class action would be superior to individual actions by the putative
`
`class members for the following reasons:
`
`(a)
`
`(b)
`
`the damages suffered by any one class member are too low
`to justify a stand-alone, individual lawsuit;
`
`the TCPA contains no provision for awarding attorney fees.
`As such, individual claimants would, as a practical matter,
`have to proceed pro se against a large, sophisticated
`defendant;
`
`(c) many of the putative class members are, like Family
`Health, non-natural entities that would not be permitted to
`proceed in court pro se; and
`
`(d)
`
`the putative class
`the evidence concerning each of
`member’s claims is so similar that the adjudication of each
`on an individual basis would be repetitive, inefficient, and
`wasteful.
`
`WHEREFORE, Plaintiff Family Health Physical Medicine, LLC demands judgment in its
`
`favor and against Defendant Brookdale Senior Living, Inc. as follows:
`
`(1)
`
`that the Court adjudge and decree that the present case may be maintained
`as a class action, appoint Family Health as the representative of the class,
`and appoint counsel for Family Health as counsel for the class;
`
`5
`
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`Case: 5:21-cv-00997-JRA Doc #: 1 Filed: 05/13/21 6 of 6. PageID #: 6
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`(2)
`
`(3)
`
`that the Court award the statutory damages provided by the TCPA to
`Family Health and the other members of the class for each violation of the
`TCPA by Brookdale Senior Living; and
`
`that the Court award Family Health an incentive award, pre-judgment
`interest, post-judgment interest, attorney fees, treble damages, costs, and
`such other relief as may be just and proper.
`
`Respectfully submitted,
`
`/s/ Matthew E. Stubbs
`GEORGE D. JONSON
`MATTHEW W. STUBBS
`MONTGOMERY JONSON LLP
`600 Vine Street, Suite 2650
`Cincinnati, OH 45202
`Telephone:
`(513) 241-4722
`Facsimile:
`(513) 768-9227
`Email:
`gjonson@mojolaw.com
`mstubbs@mojolaw.com
`
`6
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