UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

KAWA ORTHODONTICS LLP, a Florida 

limited liability partnership, individually and 

as the representative of a class of similarlysituated persons,

Plaintiff,

v.

MEDXCOM LLC, a Delaware limited 

liability company, and GIFFEN 

SOLUTIONS, INC., a Delaware 

corporation,

 Defendants.

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 Civil Action No:

 CLASS ACTION

CLASS ACTION COMPLAINT

Plaintiff, KAWA ORTHODONTICS LLP (“Plaintiff”), brings this action on behalf of

itself and all others similarly situated, through its attorneys, and except as to those allegations 

pertaining to Plaintiff or its attorneys, which allegations are based upon personal knowledge, 

alleges the following upon information and belief against Defendants, EMEDPRACTICE, LLC 

(“Defendants”):

PRELIMINARY STATEMENT

1. This case challenges Defendants’ practice of sending unsolicited facsimiles.

2. The federal Telephone Consumer Protection Act of 1991, as amended by the Junk 

Fax Prevention Act of 2005 (“JFPA”), 47 USC § 227 (hereafter “TCPA” or the “Act”), and the 

regulations promulgated under the Act, prohibit a person or entity from faxing or having an agent 

fax advertisements without the recipient’s prior express invitation or permission. The TCPA

provides a private right of action and provides statutory damages of $500 per violation.

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3. On or about January 21, 2020, Defendants sent Plaintiff an unsolicited fax 

advertisement in violation of the TCPA (“the Fax”), a true and correct copy of which is attached 

hereto as Exhibit A, and made a part hereof. Upon information and belief, Defendants have sent

the Fax and other facsimile transmissions of unsolicited advertisements to Plaintiff and the Class 

in violation of the TCPA. The Fax describes the commercial availability or quality of 

Defendants’ property, goods or services, namely, Defendants’ HIPAA-Compliant Automated 

Answering Service. (See Exhibit A). Plaintiff alleges on information and belief that Defendants

have sent, and continue to send, unsolicited advertisements via facsimile transmission in 

violation of the TCPA, including but not limited to the advertisement sent to Plaintiff.

4. Unsolicited faxes damage their recipients. A junk fax recipient loses the use of its 

fax machine, paper, and ink toner. An unsolicited fax wastes the recipient’s valuable time that 

would have been spent on something else. A junk fax intrudes into the recipient’s seclusion and 

violates the recipient’s right to privacy. Unsolicited faxes occupy fax lines, prevent fax machines 

from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue 

wear and tear on the recipients’ fax machines, and require additional labor to attempt to discern 

the source and purpose of the unsolicited message. 

5. Plaintiff alleges on information and belief that Defendants have sent, and continue 

to send, unsolicited advertisements via facsimile transmission in violation of the TCPA, 

including but not limited to the advertisement sent to Plaintiff.

6. On behalf of itself and all others similarly situated, Plaintiff brings this case as a 

class action asserting claims against Defendants under the TCPA. Plaintiff seeks to certify a class 

which were sent the Fax and other unsolicited fax advertisements that were sent without prior 

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 

damages for each violation of the TCPA and injunctive relief.

7. Plaintiff is informed and believes, and upon such information and belief avers, 

that this action is based upon a common nucleus of operative facts because the facsimile 

transmissions at issue were and are being done in the same or similar manner. This action is 

based on the same legal theory, namely liability under the TCPA. This action seeks relief 

expressly authorized by the TCPA: (i) injunctive relief enjoining Defendants, their employees, 

agents, representatives, contractors, affiliates, and all persons and entities acting in concert with 

them, from sending unsolicited advertisements in violation of the TCPA; and (ii) an award of 

statutory damages in the minimum amount of $500 for each violation of the TCPA, and to have 

such damages trebled, as provided by § 227(b)(3) of the Act in the event willfulness in violating 

the TCPA is shown..

JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 47 U.S.C. 

§ 227.

9. This Court has personal jurisdiction over Defendants because Defendants transact

business within this judicial district, have made contacts within this judicial district, and/or have

committed tortious acts within this judicial district.

PARTIES

10. Plaintiff, KAWA ORTHODONTICS LLP, is a Florida limited liability 

partnership. 

11. Defendant, MEDXCOM LLC, is a Delaware limited liability company and 

Defendant, GIFFEN SOLUTIONS, INC., is a Delaware corporation. Defendants’ principal 

place of business is in New Jersey.

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FACTS

12. On or about January 21, 2020, Defendants sent an unsolicited facsimile to 

Plaintiff using a telephone facsimile machine, computer, or other device. See Exhibit A. 

13. The Fax states, in part, as follows: 

 MedXCom

 THE BETTER WAY TO TAKE CALL

Is Your Answering Service...

 Overpriced? Error-Prone? Antiquated?

 Then it’s time to learn about MedXCom

HIPAA-Compliant Automated Answering Service

iOS and Android App

Caller ID Protection

Transfer Call Coverage

Change Contact Rules (Call or Test)

Access Voice Messages

Protect Your Practice

Record All Calls (Archived for 23 Years)

Securely Text with Colleagues and Patients

Customizable Phone Tree/Prompts

The Fax offers a 30-day free trial and provides monthly subscription costs. It includes the 

following contact information: 877.633.9776 www.medx.com sales@medx.com.

14. The Fax advertises the commercial availability and quality of Defendants’

automated answering service.

15. Defendants created or made Exhibit A, or directed a third party to do so, and 

Exhibit A was sent by or on behalf of Defendants with Defendants’ full knowledge and 

authorization.

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16 Defendants receives some or all of the revenues from the sale of the services

advertised on Exhibit A, and Defendants profits and benefits from the sale of said services

advertised on Exhibit A.

17. Plaintiff did not give Defendants “prior express invitation or permission” to send 

the fax.

18. On information and belief, Defendants faxed the same and other unsolicited 

facsimiles advertisements without the required opt-out language to Plaintiff and at least 40 other 

recipients or sent the same and other advertisements by fax with the required opt-out language 

but without first receiving the recipients’ express invitation or permission and without having an 

established business relationship as defined by the TCPA and its regulations.

19. There is no reasonable means for Plaintiff (or any other class member) to avoid 

receiving unauthorized fax advertisements. Fax machines are left on and ready to receive the 

urgent communications their owners desire to receive. 

20. Defendants’ facsimile attached as Exhibit A does not display a proper opt-out 

notice as required by 47 C.F.R. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4).

CLASS ACTION ALLEGATIONS

21. In accordance with Fed. R. Civ. P. 23(b)(3), Plaintiff brings this class action

pursuant to the TCPA, on behalf of the following class of persons:

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 Defendants, (3) from whom

Defendants did not obtain “prior express invitation or permission” 

to send fax advertisements, or (4) with whom Defendants did not 

have an established business relationship, and (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 Defendants, their employees, agents and members of the Judiciary.

Plaintiff seeks to certify a class which includes, but is not limited to, the fax advertisement sent 

to Plaintiff. Plaintiff reserves the right to amend the class definition upon completion of class 

certification discovery.

22. Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon 

such information and belief avers, that the number of persons and entities of the Plaintiff Class is 

numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and 

upon such information and belief avers, that the number of class members is at least forty.

23. Commonality (Fed. R. Civ. P. 23(a)(2)): Common questions of law and fact 

apply to the claims of all class members. Common material questions of fact and law include, but 

are not limited to, the following:

(a) Whether the Fax and other faxes sent during the class period constitute 

advertisements under the TCPA and its implementing regulations;

(b) Whether Defendants meets the definition of “sender” for direct TCPA 

liability, meaning a “person or entity on whose behalf a facsimile unsolicited 

advertisement is sent or whose goods or services are advertised or promoted in the 

unsolicited advertisement,” 47 C.F.R. § 64.1200(f)(10); 

(c) Whether Defendants had prior express invitation or permission to send 

Plaintiff and the class fax advertisements; 

(d) Whether the Fax(es) contain an “opt-out notice” that complies with the 

requirements of § (b)(1)(C)(iii) of the Act, and the regulations promulgated thereunder, 

and the effect of the failure to comply with such requirements;

(e) Whether Defendants should be enjoined from faxing advertisements in the 

future;

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(f) Whether Plaintiff and the other members of the class are entitled to 

statutory damages; and

(g) Whether the Court should award treble damages.

24. Typicality (Fed. R. Civ. P. 23 (a) (3)): Plaintiff's claims are typical of the claims 

of all class members. Plaintiff received the same or similar faxes as the faxes sent by or on behalf 

of Defendants advertising the commercial availability or quality of Defendants’ property, goods, 

or services during the Class Period. Plaintiff is making the same claims and seeking the same 

relief for itself and all class members based upon the same federal statute. Defendants have

acted in the same or in a similar manner with respect to Plaintiff and all the class members by 

sending Plaintiff and each member of the class the same or similar faxes or faxes which did not 

contain the proper opt-out language or were sent without prior express invitation or permission.

25. Fair and Adequate Representation (Fed. R. Civ. P. 23 (a) (4)): Plaintiff will fairly 

and adequately represent and protect the interests of the class. It is interested in this matter, has 

no conflicts, and has retained experienced class counsel to represent the class.

26. Predominance and Superiority (Fed. R. Civ. P. 23 (b) (3)): Common questions of 

law and fact predominate over any questions affecting only individual members, and a class 

action is superior to other methods for the fair and efficient adjudication of the controversy 

because: 

(a) Proof of the claims of Plaintiff will also prove the claims of the class 

without the need for separate or individualized proceedings;

(b) Evidence regarding defenses or any exceptions to liability that Defendants

may assert and attempt to prove will come from Defendants’ records and will not require 

individualized or separate inquiries or proceedings;

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(c) Defendants have acted and is continuing to act pursuant to common 

policies or practices in the same or similar manner with respect to all class members;

(d) The amount likely to be recovered by individual class members does not 

support individual litigation. A class action will permit a large number of relatively small 

claims involving virtually identical facts and legal issues to be resolved efficiently in one 

proceeding based upon common proofs; and

(e) This case is inherently manageable as a class action in that:

(i) Defendants identified persons to receive the fax transmissions and 

it is believed that Defendants’ and/or Defendants’ agents’ computers and business 

records will enable Plaintiff to readily identify class members and establish 

liability and damages;

(ii) Liability and damages can be established for Plaintiff and the class 

with the same common proofs;

(iii) Statutory damages are provided for in the statute and are the same 

for all class members and can be calculated in the same or a similar manner;

(iv) A class action will result in an orderly and expeditious 

administration of claims and it will foster economics of time, effort and expense;

(v) A class action will contribute to uniformity of decisions 

concerning Defendants’ practices; and

(vi) As a practical matter, the claims of the class are likely to go 

unaddressed absent class certification. 

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Claim for Relief for Violation of the TCPA, 47 U.S.C. § 227 et seq.

27. The TCPA makes it unlawful for any person to “use any telephone facsimile 

machine, computer or other device to send, to a telephone facsimile machine, an unsolicited 

advertisement . . . .” 47 U.S.C. § 227(b)(1)(C).

28. The TCPA defines “unsolicited advertisement” as “any material advertising the 

commercial availability or quality of any property, goods, or services which is transmitted to any 

person without that person's prior express invitation or permission, in writing or otherwise.”

47 U.S.C. § 227 (a) (5).

29. Opt-Out Notice Requirements. The TCPA strengthened the prohibitions against 

the sending of unsolicited advertisements by requiring, in § (b)(1)(C)(iii) of the Act, that senders 

of faxed advertisements place a clear and conspicuous notice on the first page of the transmission 

that contains the following among other things (hereinafter collectively the “Opt-Out Notice 

Requirements”):

(1) A statement that the recipient is legally entitled to opt-out of receiving 

future faxed advertisements – knowing that he or she has the legal right to request an optout gives impetus for recipients to make such a request, if desired;

(2) A statement that the sender must honor a recipient’s opt-out request within 

30 days and the sender’s failure to do so is unlawful – thereby encouraging recipients to 

opt-out, if they did not want future faxes, by advising them that their opt-out requests will 

have legal “teeth”;

(3) A statement advising the recipient that he or she may opt-out with respect 

to all of his or her facsimile telephone numbers and not just the ones that receive a faxed 

advertisement from the sender – thereby instructing a recipient on how to make a valid 

opt-out request for all of his or her fax machines;

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(4) The opt-out language must be conspicuous. 

The requirement of (1) above is incorporated from § (b)(D)(ii) of the Act. The 

requirement of (2) above is incorporated from § (b)(D)(ii) of the Act and the rules and 

regulations of the Federal Communications Commission (the “FCC”) in ¶ 31 of its 2006 Report 

and Order, 21 F.C.C.R. 3787, 2006 WL 901720, which rules and regulations took effect on 

August 1, 2006). The requirements of (3) above are contained in § (b)(2)(E) of the Act and 

incorporated into the Opt-Out Notice Requirements via § (b)(2)(D)(ii). Compliance with the OptOut Notice Requirements is neither difficult nor costly. The Opt-Out Notice Requirements are 

important consumer protections bestowed by Congress upon the owners of the telephone lines 

and fax machines giving them the right, and means, to stop unwanted faxed advertisements. 

30. 2006 FCC Report and Order. The TCPA, in § (b)(2) of the Act, directed the 

FCC to implement regulations regarding the TCPA, including the TCPA’s Opt-Out Notice 

Requirements and the FCC did so in its 2006 Report and Order, which in addition provides 

among other things:

A. The definition of, and the requirements for, an established business 

relationship for purposes of the first of the three prongs of an exemption to liability under 

§ (b)(1)(C)(i) of the Act and provides that the lack of an “established business 

relationship” precludes the ability to invoke the exemption contained in § (b)(1)(C) of the 

Act (See 2006 Report and Order ¶¶ 8-12 and 17-20);

B. The required means by which a recipient’s facsimile telephone number 

must be obtained for purposes of the second of the three prongs of the exemption under § 

(b)(1)(C)(ii) of the Act and provides that the failure to comply with these requirements 

precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See

2006 Report and Order ¶¶ 13-16);

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C. The things that must be done in order to comply with the Opt-Out Notice 

Requirements for the purposes of the third of the three prongs of the exemption under § 

(b)(1)(C)(iii) of the Act and provides that the failure to comply with these requirements 

precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See

2006 Report and Order ¶¶ 24-34).

31. The Fax. Defendants sent the Fax on or about January 21, 2020, via facsimile 

transmission from telephone facsimile machines, computers, or other devices to the telephone

lines and facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax constitutes 

an advertisement under the Act and the regulations implementing the Act. Defendants failed to 

comply with the Opt-Out Requirements in connection with the Fax. The Fax was transmitted to 

persons or entities without their prior express invitation or permission and Defendants are

precluded from sustaining the established business relationship affirmative defense with Plaintiff 

and other members of the class because of the failure to comply with the Opt-Out Notice 

Requirements. By virtue thereof, Defendants violated the TCPA and the regulations promulgated 

thereunder by sending the Fax via facsimile transmission to Plaintiff and members of the Class. 

Plaintiff seeks to certify a class which includes the Fax and all others sent during the four years 

prior to the filing of this case through the present.

32. Defendants’ Other Violations. Plaintiff is informed and believes, and upon such 

information and belief avers, that during the period preceding four years of the filing of this 

Complaint and repeatedly thereafter, Defendants have sent via facsimile transmission from 

telephone facsimile machines, computers, or other devices to telephone facsimile machines of 

members of the Plaintiff Class other faxes that constitute advertisements under the TCPA and its 

implementing regulations that were transmitted to persons or entities without their prior express 

invitation or permission and Defendants are precluded from sustaining the established business 

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relationship affirmative defense with Plaintiff and other members of the class because of the 

failure to comply with the Opt-Out Notice Requirements. By virtue thereof, Defendants violated 

the TCPA and the regulations promulgated thereunder. Plaintiff is informed and believes, and 

upon such information and belief avers, that Defendants may be continuing to send unsolicited 

advertisements via facsimile transmission in violation of the TCPA and the regulations 

promulgated thereunder, and absent intervention by this Court, will do so in the future.

33. The TCPA provides a private right of action to bring this action on behalf of 

Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for 

statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is 

appropriate. Id.

34. The TCPA is a strict liability statute, so Defendants are liable to Plaintiff and the 

other class members even if its actions were only negligent.

35. Defendants knew or should have known that (a) Plaintiff and the other class 

members had not given prior express invitation or permission for Defendants or anybody else to 

send faxes advertising the commercial availability or quality of Defendants’ automated 

answering service; (b) Plaintiff and the other class members did not have an established business 

relationship; (c) Defendants transmitted advertisements; (d) the Fax does not contain the 

required Opt-Out Notice, thereby precluding the affirmative defense of established business 

relationship; and (e) Defendants’ transmission of fax advertisements without prior express 

invitation or permission was unlawful. 

36. Defendants’ actions injured Plaintiff and the other class members. Receiving 

Defendants’ junk faxes caused Plaintiff and the other recipients to lose paper and toner 

consumed in the printing of Defendants’ faxes. Moreover, Defendants’ faxes used Plaintiff's and 

the other class members’ telephone lines and fax machines. Defendants’ faxes cost Plaintiff and 

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the other class members time, as Plaintiff and the other class members and their employees 

wasted their time receiving, reviewing, and routing Defendants’ unauthorized faxes. That time 

otherwise would have been spent on Plaintiff’s and the other class members’ business or 

personal activities. Defendants’ faxes intruded into Plaintiff’s and other class members’ 

seclusion and violated their right to privacy, including their interests in being left alone. Finally, 

the injury and property damage sustained by Plaintiff and the other class members from the 

sending of Defendants’ advertisements occurred outside of Defendants’ premises.

WHEREFORE, Plaintiff, KAWA ORTHODONTICS LLP, individually and on behalf of 

all others similarly situated, demands judgment in its favor and against Defendants, MEDXCOM 

LLC and GIFFEN SOLUTIONS, INC., jointly and severally, as follows:

A. That the Court adjudge and decree that the present case may be properly 

maintained as a class action, appoint Plaintiff as the representative of the class, and appoint 

Plaintiff’s counsel as counsel for the class;

B. That the Court award actual monetary loss from such violations or the sum of five 

hundred dollars ($500.00) for each violation, whichever is greater, and that the Court award 

treble damages of $1,500.00 if the violations are deemed “willful or knowing”;

C. That Court enjoin Defendants from additional violations; and

D. That the Court award pre-judgment interest, costs, and such further relief as the 

Court may deem just and proper.

Respectfully submitted,

KAWA ORTHODONTICS LLP, individually, and 

as the representative of a class of similarly-situated 

persons

By: /s/ Ryan M. Kelly

Ryan M. Kelly – FL Bar No.: 90110

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ANDERSON + WANCA

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

Telephone: 847/368-1500 / Fax: 847/368-1501

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