IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

SANDUSKY WELLNESS CENTER, 

LLC, an Ohio limited liability company, 

individually and as the representative of a 

class of similarly-situated persons, 

 Plaintiff, 

 v. 

VAXMAX INC., RASHEED SOOFI and 

JOHN DOES 1-10, 

 

 Defendants. 

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 No. 12-cv-5568 

FIRST AMENDED CLASS ACTION COMPLAINT

 Plaintiff, SANDUSKY WELLNESS CENTER, LLC (“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, VAXMAX 

INC., RASHEED SOOFI and JOHN DOES 1-10 (“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, 47 USC § 227 (“JFPA” or the “Act”), and the regulations 

promulgated under the Act, prohibits a person or entity from faxing or having an agent fax 

advertisements without the recipient’s prior express invitation or permission. The JFPA provides 

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

and belief, Defendants have sent facsimile transmissions of unsolicited advertisements to 

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Plaintiff and the Class in violation of the JFPA, including, but not limited to, the facsimile 

transmission of two unsolicited advertisements on February 5, 2010 and March 16, 2010 (“the 

Faxes”), true and correct copies of which is attached hereto as Exhibit A and made a part hereof. 

The Fax promotes the services and goods of Defendants. Plaintiff is informed and believes, and 

upon such information and belief avers, that Defendants have sent, and continue to send, 

unsolicited advertisements via facsimile transmission in violation of the JFPA. 

3. 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 interrupts the recipient’s privacy. 

Unsolicited faxes 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. 

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

class action asserting claims against Defendants under the JFPA. 

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

that this action is based upon a common nucleus of operative fact 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 JFPA. This action seeks relief 

expressly authorized by the JFPA: (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 JFPA; and (ii) an award of 

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

such damages trebled, as provided by § 227(b)(3) of the Act. 

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JURISDICTION AND VENUE

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

227. 

 7. Venue is proper in this District because Defendants committed a statutory tort 

within this district and a significant portion of the events took place here. 

PARTIES 

8. Plaintiff, SANDUSKY WELLNESS CENTER, LLC is an Ohio limited liability 

company with its principal place of business within this judicial district.. 

9. On information and belief, Defendant, VAXMAX INC., is an Illinois corporation 

with its principal place of business within this judicial district. 

10. On information and belief, Defendant, RASHEED SOOFI, is an officer, director, 

shareholder and control person of VAXMAX INC. 

11. On information and belief, SOOFI approved, authorized and participated in the 

scheme to broadcast advertisements by facsimile by (a) directing a list to be purchased or 

assembled; (b) directing and supervising employees or third parties to send the advertisements by 

fax; (c) creating and approving the form of advertisements to be sent; (d) determining the 

number and frequency of the facsimile transmissions; and (e) approving or paying the employees 

or third parties to send the advertisements by facsimile transmission.

12. John Does 1-10 will be identified through discovery, but are not presently known. 

FACTS 

13. On or about February 5, 2010 and March 16, 2010, Defendants transmitted by 

telephone facsimile machine two unsolicited faxes to Plaintiff. Copies of the two facsimiles are 

attached hereto as Exhibit A. 

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14. Defendants created or made Exhibit A which Defendants knew or should have 

known is a good or product which Defendants intended to and did in fact distribute to Plaintiff 

and the other members of the class. 

15. Exhibit A is part of Defendants’ work or operations to market Defendants’ goods 

or services which were performed by Defendants and on behalf of Defendants. Therefore, 

Exhibit A constitutes material furnished in connection with Defendants’ work or operations. 

16. Plaintiff had not invited or given permission to Defendants to send the faxes. 

17. On information and belief, Defendants faxed the same and similar unsolicited 

facsimiles to Plaintiff and more than 40 other recipients without first receiving the recipients’ 

express permission or invitation. 

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

receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent 

communications their owners desire to receive. 

19. Defendants’ facsimiles did not display a proper opt-out notice as required by 47 

C.F.R. § 1200. 

CLASS ACTION ALLEGATIONS 

 20. In accordance with F. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this 

class action pursuant to the JFPA, 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 of any property, goods, or 

services by or on behalf of Defendants, (3) from whom Defendants 

did not obtain prior express permission or invitation to send those 

faxes, (4) with whom Defendants did not have an established 

business relationship, and (5) did not display a proper opt-out 

notice. 

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Excluded from the Class are the Defendants, their employees, agents and members of the 

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

certification discovery. 

21. Class Size (F. 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 (40). 

22. Commonality (F. 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 Defendants sent unsolicited fax advertisements; 

b) Whether the Defendants’ faxes advertised the commercial availability of 

property, goods, or services; 

c) The manner and method the Defendants used to compile or obtain the list 

of fax numbers to which they sent Exhibit "A" and other unsolicited faxed 

advertisements; 

d) Whether the Defendants faxed advertisements without first obtaining the 

recipient's prior permission or invitation; 

e) Whether the Defendants sent the faxed advertisements knowingly; 

f) Whether the Defendants violated the provisions of 47 U.S.C. § 227 and 

the regulations promulgated thereunder; 

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g) Whether the faxes 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; 

h) Whether the Defendants should be enjoined from faxing advertisements in 

the future; 

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

statutory damages; and 

j) Whether the Court should award treble damages. 

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

claims of all class members. The Plaintiff received faxes sent by or on behalf of the Defendants 

advertising goods and services of the Defendants during the Class Period. The Plaintiff is making 

the same claims and seeking the same relief for itself and all class members based upon the same 

federal statute. The Defendants have acted the same or in a similar manner with respect to the 

Plaintiff and all the class members. 

24. Fair and Adequate Representation (F. R. Civ. P. 23 (a) (4)): The 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. 

25. Need for Consistent Standards and Practical Effect of Adjudication (F. R. Civ. P. 

23 (b) (1)): Class certification is appropriate because the prosecution of individual actions by 

class members would: (a) create the risk of inconsistent adjudications that could establish 

incompatible standards of conduct for the Defendants, and/or (b) as a practical matter, 

adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are 

not parties. 

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26. Common Conduct (F. R. Civ. P. 23 (b) (2)): Class certification is also 

appropriate because the Defendants have acted and refused to act in the same or similar manner 

with respect to all class members thereby making injunctive and declaratory relief appropriate. 

The Plaintiff demands such relief as authorized by 47 U.S.C. §227. 

27. Predominance and Superiority (F. 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 the 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 the Defendants 

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

individualized or separate inquiries or proceedings; 

c) The Defendants have acted and are 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 (1) 

proceeding based upon common proofs; and 

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

(i) The Defendants identified persons or entities to receive the fax 

transmissions and it is believed that the Defendants’ computer and business records will 

enable the Plaintiff to readily identify class members and establish liability and 

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damages; 

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

Defendants’ practices; and 

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

absent class certification. 

COUNT I 

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

28. Plaintiff and the Plaintiff Class reassert and incorporate herein by reference the 

averments set for in paragraphs 1-27 above. 

29. The JFPA makes 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). 

30. The JFPA 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). 

31. Opt-Out Notice Requirements. The JFPA 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 

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 opt-out 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; 

 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 (In the Matter of Rules and Regulations Implementing the Telephone Consumer 

Protection Act, Junk Prevention Act of 2005, 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 Opt-Out Notice Requirements is neither difficult nor costly. The Opt-Out 

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Notice Requirements are important consumer protections bestowed by Congress upon the 

owners of fax machines giving them the right, and means, to stop unwanted faxed 

advertisements. 

 32. 2006 FCC Report and Order. The JFPA, in § (b)(2) of the Act, directed the 

FCC to implement regulations regarding the JFPA, including the JFPA’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); 

 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); 

 D. The failure of a sender to comply with the Opt-Out Notice Requirements 

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precludes the sender from claiming that a recipient gave “prior express permission or invitation” 

to receive the sender’s fax (See Report and Order ¶48); 

 As a result thereof, a sender of a faxed advertisement who fails to comply with the OptOut Notice Requirements has, by definition, transmitted an unsolicited advertisement under the 

JFPA. This is because such a sender can neither claim that the recipients of the faxed 

advertisement gave “prior express permission or invitation” to receive the fax nor can the sender 

claim the exemption from liability contained in § (b)(C)(1) of the Act. 

 33. The Faxes. Defendant sent the February 5, 2010 and March 16, 2010 Faxes via 

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

telephone facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax 

constituted advertisements under the Act. Defendants failed to comply with the Opt-Out 

Requirements in connection with the Faxes. The Faxes were transmitted to persons or entities 

without their prior express permission or invitation and/or Defendants are precluded from 

asserting any prior express permission or invitation because of the failure to comply with the 

Opt-Out Notice Requirements. By virtue thereof, Defendants violated the JFPA and the 

regulations promulgated thereunder by sending the Faxes via facsimile transmission to Plaintiff 

and members of the Class. 

 34. Defendant’s 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 faxes that constitute advertisements under the JFPA that were 

transmitted to persons or entities without their prior express permission or invitation (and/or that 

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Defendants are precluded from asserting any prior express permission or invitation because of 

the failure to comply with the Opt-Out Notice Requirements in connection with such 

transmissions). By virtue thereof, Defendants violated the JFPA and the regulations promulgated 

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

Defendants are continuing to send unsolicited advertisements via facsimile transmission in 

violation of the JFPA and the regulations promulgated thereunder, and absent intervention by 

this Court, will do so in the future. 

 33. The TCPA/JFPA 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. 

35. The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff 

and the other class members even if their actions were only negligent. 

36. The Defendants knew or should have known that (a) the Plaintiff and the other 

class members had not given express invitation or permission for the Defendants or anybody else 

to fax advertisements about the Defendants’ goods or services; (b) the Plaintiff and the other 

class members did not have an established business relationship; (c) Defendants transmitted an 

advertisement; and (d) the Fax did not contain the required Opt-Out Notice. 

37. The Defendants’ actions caused damages to the Plaintiff and the other class 

members. Receiving the Defendants’ junk faxes caused the recipients to lose paper and toner 

consumed in the printing of the Defendants’ faxes. Moreover, the Defendants’ fax used the 

Plaintiff's fax machine. The Defendants’ fax cost the Plaintiff time, as the Plaintiff and its 

employees wasted their time receiving, reviewing and routing the Defendants’ unauthorized fax. 

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That time otherwise would have been spent on the Plaintiff's business activities. The 

Defendants’ fax unlawfully interrupted the Plaintiff's and other class members' privacy 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, SANDUSKY WELLNESS CENTER, LLC, individually and 

on behalf of all others similarly situated, demands judgment in its favor and against Defendants, 

VAXMAX INC., RASHEED SOOFI and JOHN DOES 1-10, 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 the Plaintiff as the representative of the class and appoint 

the 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; 

C. That Court enjoin the 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, 

SANDUSKY WELLNESS CENTER, LLC, 

individually and as the representative of a class of 

similarly-situated persons 

 s/ Brian J. Wanca 

Brian J. Wanca 

Ryan M. Kelly 

ANDERSON + WANCA 

3701 Algonquin Road, Suite 760 

Rolling Meadows, IL 60008 

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

E-mail: bwanca@andersonwanca.com

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CERTIFICATE OF SERVICE 

 I hereby certify that on January 31, 2013, I caused the foregoing to be electronically filed 

with the Clerk of the Court using the CM/ECF system which will send notification of such filing 

to the email addresses denoted on the Electronic Mail Notice List. 

 s/Brian J. Wanca 

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