IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ABLE HOME HEALTH, LLC, )

on behalf of itself and a class, )

)

Plaintiff, ) 12 C 3019

)

v. )

) Magistrate Judge Finnegan 

HEALTHY ADVICE )

COMMUNICATIONS, INC., )

)

Defendant. )

PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL

Plaintiff Able Home Health, LLC respectfully requests that this Court enter an

order: (i) certifying a class for settlement purposes; (ii) granting preliminary approval of the

Class Settlement Agreement (“Agreement”) in the form of Exhibit 3 to the Agreement; and (iii)

appointing Able Home Health, LLC as a Class Representative and Edelman, Combs, Latturner &

Goodwin, LLC (“ECLG”) as class counsel. In support of this motion, Plaintiff states as follows:

1. Plaintiff filed the above captioned lawsuit against defendant, Healthy

Advice Communications, Inc. (“Healthy Advice” or “Defendant”) alleging that it violated the

Telephone Consumer Protection Act, 47 U.S.C. §227 ("TCPA"), the Illinois Consumer Fraud

Act, 815 ILCS 505/2 and common law conversion, by sending unsolicited facsimile

advertisements to Plaintiff and other members of the class. 

2. Counsel for Plaintiff and Defendant have reviewed and analyzed the legal

and factual issues presented in this action, the risks and expense involved in pursuing the

litigation to conclusion, the likelihood of recovering damages in excess of those obtained through

1

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 1 of 13 PageID #:127
this settlement, the protracted nature of the litigation and the likelihood, costs and possible

outcomes of one or more procedural and substantive appeals. Based upon their review and

analysis, Plaintiff and Defendant entered into the Settlement Agreement, attached hereto as

Appendix A.

3. The parties desire to settle and compromise the litigation on the terms and

conditions embodied in the Agreement and agree as follows:

a. Class Certification. The parties agree to the certification of a class

for settlement purposes only, consisting of:

All persons and entities with facsimile numbers who on or after April 24, 2007,

through and including May 14, 2012, were sent faxes by or on behalf of Healthy

Advice Communications, Inc. promoting its goods or services for sale and who

were not provided with an “opt out” notice as described in 47 U.S.C. § 227.

Defendant represents that, based on a review of its records, it sent one advertisement promoting

its goods or services for sale to approximately 90 unique facsimile telephone numbers (“Fax

List”). 

b. Settlement Recovery. 

(1) Healthy Advice shall pay $30,000 (hereinafter “the

Settlement Fund”) to establish the Settlement Fund. The Settlement Fund will be used to provide

recovery to the Settlement Class. The Settlement Fund will be divided pro rata per fax number. 

Defendant has identified approximately 90 unique telephone facsimile numbers to which the

unsolicited advertising faxes were sent. 

Payments will be made from the Settlement Fund to those Settlement Class

Members who timely submit a valid claim form, after the deductions described in subparagraphs

2

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 2 of 13 PageID #:128
(2) and (3). 

(2) Plaintiff’s counsel shall submit a request for attorney’s fees

and costs in an amount not to exceed $9,000 or 30% of the Settlement Fund. This amount shall

be paid from the Settlement Fund and shall be approved by the Court. 

(3) Plaintiff shall receive, subject to Court approval, an award 

of $3,000 which will provide an incentive award for its services as Class Representative. This

amount shall be in addition to any amount plaintiff may recover as a class member, and shall be

paid out of the Settlement Fund.

(4) Defendant shall pay all costs of notice and administration in

addition to the Settlement Fund. 

 (5) All settlement checks shall be void 60 days from the date

of issuance and shall so state on the check. Any amounts remaining in the Settlement Fund 30

days after expiration of the void date on the Class Members’ settlement checks shall be paid as cy

pres, with the consent and approval of the Court. The parties recommend the Cook County Bar

Association Foundation and Freestore Foodbank as equal recipients of any cy pres award. 

c. Class Notice. The parties will retain a mutually acceptable third

party class administrator (“Class Administrator”) to send notice to the Settlement Class by

facsimile and U.S. Mail to those with reasonably ascertainable addresses, if practicable, and to

receive and validate incoming claims and administer the Settlement Fund. Within 35 days of the

entry of the Court's preliminary approval order of the Agreement, the Class Administrator will

give or cause to be given notice ("Notice") of the settlement via facsimile transmission, in the

form of Exhibit 1 to the Agreement, which includes a Claim Form, in the form of Exhibit 2 to the

3

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 3 of 13 PageID #:129
Agreement, to the persons and entities identified on the Fax List. The Class Administrator shall

make at least two attempts to transmit the Notice by facsimile to those numbers where the initial

transmission failed. 

The Class Administrator may attempt to identify, if practicable, those settlement

class members who did not receive the Notice by facsimile. The Class Administrator may mail

Notice and a Claim Form to those settlement class members who have identifiable addresses and

who did not receive the notice by facsimile. Within 21 days of the date that the Notice was sent

by facsimile, the Class Administrator, may send the Notice and Claim Form by U.S. Mail and/or

by facsimile to each Settlement Class Member identified on the Fax List who did not submit a

Claim Form by that date. 

Plaintiff’s Counsel will also post the Notice, but not the Claim Form, and the

Settlement Agreement (excluding exhibits) on its website. Class Members will have 95 days

from the date of entry of the Preliminary Approval Order to submit claim forms. 

d. Class Members’ Right to Opt Out. Any Class member may seek to

be excluded from the Agreement and the lawsuit by opting out of the Class within the time

period set by this Court. Any member who opts out of the Class shall not be bound by any prior

Court order or the terms of the Agreement and shall not be entitled to any of the monetary

benefits set forth in the Agreement. Class Members will have 95 days from the date of entry of

the Preliminary Approval order to opt out of the Settlement. 

e. Claim Form. In order to the receive consideration provided under 

the settlement, each class member must timely return a claim form which will be provided with

the Notice sent via facsimile and/or mail. After the deadline for the receipt of claim forms

4

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 4 of 13 PageID #:130
expires, the Class Administrator will determine the number of valid claim forms received. 

f. Class Members’ Right to Object. Any Class member may object

to the Settlement Agreement by filing with the Court and mailing to Settlement Class Counsel

and counsel for Healthy Advice a written objection within the time period set by this Court. Any

member who objects to the Settlement may appear and be heard at the final approval hearing. 

Class Members will have 95 days from the date of entry of the Preliminary Approval Order to

object to the Settlement. 

4. Federal Rule of Civil Procedure 23(a) makes class certification

appropriate in cases where:

(1) The class is so numerous that joinder of all members is 

 impracticable,

 

(2) There are questions of fact or law common to the class,

 

 (3) The claims or defensives of the representative parties are typical of 

 the claims defenses of the class, and

(4) The representative parties will fairly and adequately protect the 

 interest of the class. 

 

Further, Federal Rule of Civil Procedure 23(b)(3) provides that a class action is maintainable if

the above prerequisites have been met and:

the court finds that the questions of law or fact common to the

members of the class predominate over any questions affecting only

individual members, and that a class action is superior to other

available methods for the fair and efficient adjudication of the

controversy.

As demonstrated below, each of the requirements for certification of a Settlement Class is met.

i. Rule 23(a)(1) -- Numerosity. Fed. R. Civ. P. 23(a)(1) 

5

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 5 of 13 PageID #:131
requires that the class be "so numerous that joinder of all members is impracticable." The

numerosity requirement is satisfied if it is reasonable to conclude that the number of members of

the proposed class is greater than the minimum number required for class certification, which is

about 10-40. Kulins v. Malco, 121 Ill. App. 3d 520, 530, 459 N.E.2d 1038 (1st Dist. 1984) (19

and 47 sufficient); Swanson v. American Consumer Industries, 415 F.2d 1326, 1333 (7th Cir.

1969) (40 class members sufficient); Cypress v. Newport News General & Nonsectarian Hosp.

Ass'n, 375 F.2d 648, 653 (4th Cir. 1967) (18 sufficient); Riordan v. Smith Barney, 113 F.R.D.

60, 62 (N.D. Ill. 1986) (10-29 sufficient); Sala v. National R. Pass. Corp., 120 F.R.D. 494, 497

(E.D. Pa. 1988) (40-50 sufficient); Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 184

(N.D. Ill. 1992) (72 class members).

 In the present case, defendant has estimated that there are approximately 90

persons and entities who meet the proposed class definition. This plainly satisfies the numerosity

requirement.

ii. Rule 23(a)(2) -- Commonality; and Rule 23(b)(3)-

Common Questions of Law or Fact Predominate. Fed. R. Civ. P. 23(a)(2) requires that there be

a common question of law or fact. Rule 23(b)(3) requires that the questions of law or fact

common to all members of the class predominate over questions pertaining to individual

members. The commonality requirement is satisfied if there are common questions linking the

class members that are substantially related to the outcome of the litigation. Blackie v. Barrack,

524 F.2d 891, 910 (9th Cir. 1975). Common questions predominate if classwide adjudication of

the common issues will significantly advance the adjudication of the merits of all class members'

claims. McClendon v. Continental Group, Inc., 113 F.R.D. 39, 43-44 (D.N.J. 1986); Genden v.

6

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 6 of 13 PageID #:132
Merrill Lynch, Pierce, Fenner & Smith, Inc., 114 F.R.D. 48, 52 (S.D.N.Y. 1987); Spicer v.

Chicago Board Options Exchange, CCH Fed.Sec.L.Rptr. [1989-90 Transfer Binder] ¶94,943, at

p. 95,254 (N.D. Ill. 1990); Alexander Grant & Co. v. McAlister, 116 F.R.D. 583, 590 (S.D. Ohio

1987). Where a case involves "standardized conduct of the defendants toward members of the

proposed class, a common nucleus of operative facts is typically presented, and the commonality

requirement . . . is usually met." Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D.Ill.

1984); Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D. Ill. 1988).

Here, there are questions of law and fact common to the class that predominate

over any questions affecting only individual class members. The predominant common

questions include:

(1) Whether defendant engaged in a pattern of sending unsolicited fax 

advertisements;

(2) Whether defendant thereby violated the TCPA;

(3) Whether defendants thereby engaged in unfair acts and practices, in

violation of the ICFA.

(4) Whether defendants thereby converted the property of plaintiff.

(5) The manner in which defendant compiled or obtained their list of fax

numbers. 

The settlement class is defined in terms of all persons and entities with facsimile

numbers, who on or after April 24, 2007, through and including May 14, 2012, were sent faxes

by or on behalf of Healthy Advice Communications, Inc. promoting its goods or services for sale,

and who were not provided with an “opt out” notice as described in 47 U.S.C. § 227. 

Several courts have certified class actions under the TCPA. CE Design Ltd. v.

7

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 7 of 13 PageID #:133
Cy’s Crabhouse North, Inc., 07 C 5456, 2009 U.S. Dist. LEXIS 67323 (N.D. Ill. July 27, 2009); 

Sadowski v. Med1 Online, LLC, 07 C 2973, 2008 U.S. Dist. LEXIS 41766 (N.D.Ill., May 27,

2008); Hinman v. M & M Rental Ctr., 06 C 1156, 2008 U.S. Dist. LEXIS 27835 (N.D.Ill., April

7, 2008); Lampkin v. GGH, Inc., 146 P.3d 847 (Okla. Ct. App. Oct. 31, 2006); Display South,

Inc. v. Express Computer Supply, Inc., 961 So.2d 451, 455 (La. App. 1 Cir. 2007); st

Transportation Institute v. Promo Dart, Inc., No. 06-2-03460-1 (King Co. Sup. Ct. Wash., Nov.

14, 2006); Kavu, Inc. v. Omnipak Corporation, 246 F.R.D. 642 (W.D. Wash. 2007); Gortho,

Ltd., v. Websolv, 03 CH 15615 (Cir. Ct. Cook Co., March 6, 2008); Rawson v. C.P. Partners

LLC, 03 CH 15165 (Cook Co. Cir. Ct.); Telecommunications Design Network v. McLeodUSA,

Inc., 03 CH 8477 (Cook Co. Cir. Ct.); CE Design v. The Trade Show Network Marketing

Group, Inc., No. 03 CH K 964 (Cir. Ct. Kane Co., Dec. 2, 2004); Travel 100 Group, Inc. v.

Empire Cooler Service, Inc., 03 CH 14510 (Cook Co. Cir. Ct.); Bogot v. Olympic Funding

Chicago, No. 03 CH 11887 (Cook Co. Cir. Ct.); Rawson, et. al., v. Robin Levin d/b/a The

Ridgewood Organization, 03 CH 10844 (Cook Co. Cir. Ct.) (for settlement purposes);

Kerschner, et. al., v. Answer Illinois, Inc., 03 CH 21621 (Cook Co. Cir. Ct.) (for settlement

purposes); Kerschner, et. al., v. Murray and Trettel, Inc., 03 CH 21621 (Cook Co. Cir. Ct.) (for

settlement purposes); Prints of Peace, Inc., d/b/a Printers, Inc. v. Enovation Graphic System, Inc.,

03 CH 15167 (Cook Co. Cir. Ct.) (for settlement purposes); Law Office of Martha J. White, P.C.

v. Morrissey Agency Inc., 03 CH 13549 (Cook Co. Cir. Ct.) (for settlement purposes); 

Kerschner, et. al., v. Fitness Image, Inc., Rommey Abdallah, and Bottom Line Sales Systems,

Inc., 04 CH 00331 (Cook Co. Cir. Ct.) (for settlement purposes); INSPE Associates, Ltd., et al. v.

Charter One Bank, 03 CH 10965 (Cook Co. Cir. Ct.) (for settlement purposes); Bernstein v.

8

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 8 of 13 PageID #:134
New Century Mortgage Corp., 02 CH 06907 (Cook Co. Cir. Ct.) (for settlement purposes); Gans

v Seventeen Motors, Inc., No. 01-L-478 (Ill.Cir. Ct.) (for settlement purposes); Nicholson v.

Hooters of Augusta, Inc., 245 Ga.App. 363, 537 S.E.2d 468 (2000) (private class action); ESI

Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. (App.) 94, 50 P.3d

844 (2002) (same); Core Funding Group, LLC v. Young, 792 N.E.2d 547 (Ind.App. 2003)

(same); Biggerstaff v. Ramada Inn and Coliseum, 98-CP-10-004722, (S.C. C.P., Feb. 3, 2000)

(same); Biggerstaff v. Marriott International, Inc., 99-CP-10-001366, (C.P. S.C., Feb 20, 2000)

(same); Gold Seal v. PrimeTV, No. 49C01-0112-CP-3010 (Marion County, Indiana, August 29,

2002)(same); Jemiola v. XYZ Corp., No. 411237 (C.P. Ohio, Dec. 21, 2001)(same); Salpietro v.

Resort Exchange International, No. GD00-9071 (Allegheny Co. C.P.)(same); WPS, Inc. v. Lobel

Financial, Inc., No 01CP402029 (C.P. S.C., Oct. 15, 2001) (same); Kenro, Inc. v. APO Health,

Inc., No. 49D12-0101-CP-000016 (Ind. Nov. 3, 2001) (same); Syrett v. Allstate Ins. Co., No.

CP-02-32-0751 (S.C.C.P. Aug. 12, 2003) (same); Lipscomb v Wal-Mart Stores, Inc., No. 01-CP20-263 (S.C.C.P. June 26, 2003) (same); Battery, Inc. v. United Parcel Service, Inc., No. 01-CP10-2862 July 26, 2002) (same); Chaturvedi v. JTH Tax, Inc., No. CD-01-008851 (Pa. C.P. Oct

1, 2001) (same); Dubsky v Advanced Cellular Communications, Inc., No. 2004 WL 503757

(Ohio C.P. Feb. 24, 2004) (same); Inhance Corp. v. Discount Vacation Rentals, No. LALA

004377 (Iowa Dist. Jan. 5, 2001) (same); Inhance Corp. v. Special T Travel Services, Inc., No.

LALA 004362 (Iowa Dist. Dec. 8, 2000) (same); see State of Texas v. American Blast Fax, Inc.,

164 F. Supp. 2d 892 (W.D. Tex. 2001) (state enforcement action). Several others were certified

in a Louisiana federal court, against Kappa Publishing Group, Monroe Systems, and Satellink

Paging (The Advocate, Capital City Press, Dec. 28, 2005, p. 1).

9

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 9 of 13 PageID #:135
iii. Rule 23(a)(3) – Typicality. Rule 23 requires that the

claims of the named Plaintiff be typical of the claims of the class:

A plaintiff's claim is typical if it arises from the same event or practice or course

of conduct that gives rise to the claims of other class members and his or her

claims are based on the same legal theory. The typicality requirement may be

satisfied even if there are factual distinctions between the claims of the named

plaintiffs and those of other class members. Thus, similarity of legal theory may

control even in the face of differences of fact.

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citation omitted).

In the instant case, typicality is inherent in the class definition. By definition, each

of the class members has been subjected to the same practice as the named Plaintiff, namely they

are persons and entities with fax numbers who on or after April 24, 2007, through and including

May 14, 2012, were sent faxes by or on behalf of Healthy Advice Communications, Inc.

promoting its goods or services for sale, and who were not provided with an “opt out” notice as

described in 47 U.S.C. § 227. 

iv. Rule 23(a)(4) -- Adequacy of Representation. The

adequacy of representation requirement involves two factors: (a) the plaintiff's attorney must be

qualified, experienced, and generally able to conduct the proposed litigation; and (b) the plaintiff

must not have interests antagonistic to those of the class. Rosario v. Livaditis, 963 F.2d 1013,

1018 (7th Cir. 1992).

 Plaintiff will fairly and adequately protect the interests of the class. Plaintiff has

retained counsel experienced in handling class actions and claims involving unlawful business

practices. Counsel’s qualifications are set forth in Appendix B. Neither plaintiff nor plaintiff’s

counsel have any interests which might cause them not to vigorously pursue this action. 

10

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 10 of 13 PageID #:136
v. Rule 23(b)(3) -- Class Action Is Superior to Other 

Available Methods of Resolving This Controversy. A class action is the superior method for the

fair and efficient adjudication of this controversy. The interest of class members in individually

controlling the prosecution of separate claims is small because generally the class members are

unaware of their rights and have damages such that it is not feasible for them to bring individual

actions. "[O]ne of the primary functions of the class suit is to provide a device for vindicating

claims which, taken individually, are too small to justify legal action but which are of significant

size if taken as a group." Brady v. LAC, Inc., 72 F.R.D. 22, 28 (S.D.N.Y. 1976).

The special efficacy of the consumer class action has been noted by the courts and

is applicable to this case:

A class action permits a large group of claimants to have their claims

adjudicated in a single lawsuit. This is particularly important where, as

here, a large number of small and medium sized claimants may be involved. 

In light of the awesome costs of discovery and trial, many of them would not

be able to secure relief if class certification were denied . . . . 

In re Folding Carton Antitrust Litigation, 75 F.R.D. 727, 732 (N.D. Ill. 1977) (citations omitted).

Another court has noted:

Given the relatively small amount recoverable by each potential litigant, it is

unlikely that, absent the class action mechanism, any one individual would

pursue his claim, or even be able to retain an attorney willing to bring the

action. As Professors Wright, Miller, and Kane have discussed in analyzing

consumer protection class actions such as the instant one, 'typically the

individual claims are for small amounts, which means that the injured

parties would not be able to bear the significant litigation expenses involved

in suing a large corporation on an individual basis. These financial barriers

may be overcome by permitting the suit to be brought by one or more

consumers on behalf of others who are similarly situated.' 7B Wright et al.,

§1778, at 59; see, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809

(1985) ('Class actions . . . may permit the plaintiffs to pool claims which

would be uneconomical to litigate individually.'). The public interest in

11

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 11 of 13 PageID #:137
seeing that the rights of consumers are vindicated favors the disposition of

the instant claims in a class action form.

Lake v. First Nationwide Bank, 156 F.R.D. 615, 625 (E.D. Pa. 1994).

5. Counsel for plaintiff and the proposed class believe that the settlement of

this action on the terms and conditions set forth in the Agreement is fair, reasonable, and

adequate, and would be in the best interest of the class members.

WHEREFORE, plaintiff respectfully request that this Court enter an order in the

form of Exhibit 3 to the Agreement, which (i) grants preliminary approval of the proposed

settlement, (ii) appoints Able Home Health, LLC as a Class Representative and Edelman,

Combs, Latturner & Goodwin, LLC (“ECLG”) as class counsel; (iii) directs the faxing and/or

mailing of the Notice in the form of Exhibit 1 to the Agreement, and a Claim Form in the form of

Exhibit 2 to the Agreement, and (iv) sets dates for submission of claim forms, opt-outs,

appearances, objections, and schedules a hearing for final approval under Fed. R. Civ. P.

23(c)(2).

Respectfully submitted,

s/ Heather Kolbus 

Heather Kolbus 

Daniel A. Edelman

Cathleen M. Combs

James O. Latturner

Heather Kolbus 

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

120 S. LaSalle Street, Suite 1800

Chicago, IL 60603

(312) 739-4200

(312) 419-0379 (FAX)

12

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 12 of 13 PageID #:138
CERTIFICATE OF SERVICE

I, Heather Kolbus, certify that on October 2, 2012, I caused a true and accurate

copy of the foregoing document to be served upon the parties listed below through the Court’s

CM/ECF system:

Kevin M. Forde

kforde@fordeltd.com

Michael K. Forde

mforde@fordeltd.com

Melissa G. Lafferty

mlafferty@fordeltd.com

Kevin R. Malloy

kmalloy@fordeltd.com

 s/ Heather Kolbus 

Heather Kolbus

Daniel A. Edelman

Cathleen M. Combs

James O. Latturner

Heather Kolbus

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

120 S. LaSalle Street, 18th floor

Chicago, Illinois 60603

(312) 739-4200

(312) 419-0379 (FAX)

13

Case: 1:12-cv-03019 Document #: 48 Filed: 10/02/12 Page 13 of 13 PageID #:139