UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

GORSS MOTELS, INC., a Connecticut

corporation, individually and as the

representative of a class of similarly- situated persons,

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JURY TRIAL DEMANDED

CASE NO: 1:16-CV-00330-JD-SLC

Plaintiff,

vs.

BRIGADOON FITNESS INC., an

Indiana corporation, and BRIGADOON

FINANCIAL, INC., an Indiana

corporation, and JOHN DOES 1-5,

Defendants. DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES

Defendants Brigadoon Fitness Inc. and Brigadoon Financial, Inc. (collectively

"Brigadoon"), by counsel, now answer Plaintiff Gorss Motels, Inc. ("Gorss") Class Action

Complaint. Pursuant to N.D. Ind. L.R. 10-1, Brigadoon’s Complaint allegations are set forth

verbatim below, with Brigadoon’s response immediately following each allegation.

PRELIMINARY STATEMENT

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

ANSWER: Brigadoon admits that the Complaint purports to challenge the

transmission of a single facsimile to Plaintiff. Brigadoon denies the remaining allegations of this

paragraph.

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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, prohibit 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

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

transmission of an unsolicited advertisement on or about April 7, 2013 (“the Fax”), a true and

correct copy of which is attached hereto as Exhibit A, and made a part hereof. The Fax describes

the commercial availability or quality of Defendants’ products, goods and services. 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, including but not limited to those advertisements sent to Plaintiff.

ANSWER: Brigadoon admits that Congress enacted the Telephone Consumer

Protection Act (“TCPA”), as amended by the Junk Fax Prevention Act (“JFPA”) the language,

terms, and conditions of which speak for themselves. This paragraph contains legal conclusions

to which no response is required. To the extent a response is required, Brigadoon refers to the

referenced statute for its actual language and complete content and denies the remaining

allegations of this paragraph.

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

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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.

ANSWER: This paragraph contains no allegations directed to Brigadoon. This

paragraph also contains legal conclusions to which no response is required. To the extent a

response is required, Brigadoon denies that any of its actions damaged Plaintiff and denies the

remaining allegations of this paragraph.

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. Plaintiff seeks to certify a class

including faxes sent to Plaintiff and other advertisements sent without prior opt-out language or

without prior express invitation or permission whether sent to Plaintiff or not.

ANSWER: Brigadoon admits that Plaintiff purports to bring this case as a class action

asserting claims under the JFPA, but Brigadoon denies that it is liable under the JFPA and denies

that this case is appropriate for certification as a class action. This case cannot be certified as a

class action because, among other reasons, there are questions of fact and law, including but not

limited to the question of prior consent or permission that must be resolved on an individual

basis for Plaintiff and any member of the putative class. Brigadoon denies the remaining

allegations of this paragraph.

5. 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 JFPA. This action seeks relief

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

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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.

ANSWER: This paragraph states legal conclusions to which no response is required.

To the extent a response is required, Brigadoon refers to the referenced statute for its actual

language and complete content and otherwise denies the allegations of this paragraph.

JURISDICTION AND VENUE

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

227.

ANSWER: Brigadoon admits that this Court has subject matter jurisdiction over

TCPA claims generally. However, Plaintiff has suffered no actual injury traceable to the

challenged actions of Brigadoon, therefore, Plaintiff lacks standing under Article III of the U.S. Constitution, and this Court lacks subject matter jurisdiction in this case.

7. 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.

ANSWER: For purposes of this action only, Brigadoon states that it is not contesting

personal jurisdiction. Brigadoon denies the allegation that it has committed tortious acts within

this judicial district.

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PARTIES

8. Plaintiff, GORSS MOTELS, INC., is a Connecticut corporation.

ANSWER: Brigadoon lacks knowledge or information sufficient to form a belief as to

the truth of the allegations in this paragraph and, therefore, denies the allegations.

9. On information and belief, Defendant, BRIGADOON FITNESS INC. is an

Indiana corporation.

ANSWER: Admitted.

10. On information and belief, Defendant, BRIGADOON FINANCIAL, INC., is an

Indiana corporation.

ANSWER: Admitted.

11. JOHN DOES 1-5 will be identified through discovery, but are not presently

known.

ANSWER: Brigadoon lacks knowledge or information sufficient to form a belief as to

the truth of the allegations of this paragraph and, therefore, denies the allegations.

FACTS

12. On information and belief, on or about April 17, 2013, Defendants transmitted by

telephone facsimile machine an unsolicited facsimile to Plaintiff. A copy of the facsimile is

attached hereto as Exhibit A. ANSWER: Denied.

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13. On information and belief, Defendants receive some or all of the revenues from

the sale of the products, goods and services advertised on Exhibit A, and Defendants profit and

benefit from the sale of the products, goods and services advertised on Exhibit A.

ANSWER: Denied.

14. Plaintiff had not invited or given permission to Defendants to send the fax.

ANSWER: Denied.

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

facsimiles without required opt-out language to Plaintiff and more than 25 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.

ANSWER: Denied

16. 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.

ANSWER: Denied

17. Defendants’ facsimile attachment as Exhibit A did not display a proper opt-out

notice as required by 47 C.F.R. § 64.1200.

ANSWER: Denied.

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CLASS ACTION ALLEGATIONS

18. In accordance with Fed. 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 or quality of any property,

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

which Defendants did not have prior express invitation or

permission, or (4) which did not display or proper opt-out notice.

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

Judiciary. Plaintiff seeks to certify a class which include but are not limited to the fax

advertisements sent to Plaintiff. Plaintiff reserves the right to amend the class definition upon

completion of class certification discovery.

ANSWER: Brigadoon admits that Plaintiff purports to bring this action as a class

action, but denies that it is appropriate for certification as a class action, and further denies the

remaining allegations of this paragraph.

19. 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.

ANSWER: Brigadoon admits that Plaintiff purports to bring this action as a class

action, but denies that it is appropriate for certification as a class action, and further denies the

remaining allegations of this paragraph.

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20. 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 Defendants sent unsolicited fax advertisements;

(b) Whether Defendants’ faxes sent to other persons, not the Plaintiff,

constitute advertisements;

(c) Whether the Defendants’ faxes advertised the commercial availability or

quality of property, goods, or services;

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

of fax numbers to which they sent Exhibit A, other unsolicited faxed advertisements or

other advertisements without the required opt-out language;

(e) Whether the Defendants faxed advertisements without first obtaining the

recipient’s prior invitation or permission;

(f) Whether the Defendants sent the faxed advertisements knowingly;

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

the regulations promulgated thereunder;

(h) 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;

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

the future;

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

statutory damages; and

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(k) Whether the Court should award treble damages.

ANSWER: Denied.

21. Typicality (Fed. R. Civ. P. 23 (a) (3)): The Plaintiff’s claims are typical of the

claims of all class members. The Plaintiff received the same or similar faxes as the faxes sent by

or on behalf of the Defendants advertising products, 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 in the

same or in a similar manner with respect to the 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.

ANSWER: Denied.

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

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

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

ANSWER: Brigadoon lacks knowledge or information sufficient to form a belief as to

the truth of the allegations in this paragraph and, therefore, denies the allegations.

23. Need for Consistent Standards and Practical Effect of Adjudication (Fed. 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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ANSWER: Denied.

24. Common Conduct (Fed. 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.

ANSWER: Denied.

25. 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 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 attempt to 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

proceeding based upon common proofs; and

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

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

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

business records will enable the Plaintiff to readily identify class members and

establish liability and 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, efforts 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.

ANSWER: Denied.

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

26. The JFPA makes it unlawful for any person to “use any telephone facsimile

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

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

ANSWER: This paragraph states a legal conclusion to which no response is required.

To the extent a response is required, Brigadoon admits that the referenced statute contains the

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language quoted in this paragraph. Brigadoon refers to the referenced statute for its actual

language and complete content. Brigadoon otherwise denies the allegations of this paragraph.

27. 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).

ANSWER: This paragraph states a legal conclusion to which no response is required.

To the extent a response is required, Brigadoon admits that the referenced statute contains the

language quoted in this paragraph. Brigadoon refers to the referenced statute for its actual

language and complete content. Brigadoon otherwise denies the allegations of this paragraph.

28. Opt-Out Notice Requirements. The JFPA 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 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

out-out, of they did not want future faxes, by advising them that there opt-out requests

will have legal “teeth”;

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(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 received a faxed

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

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

(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 (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 effort 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

Notice Requirements are important consumer protections of bestowed by Congress upon the

owners of the telephone lines and fax machines giving them the right, and means, to stop

unwanted faxed advertisements.

ANSWER: This paragraph states a legal conclusion to which no response is required.

To the extent a response is required, Brigadoon refers to the referenced statute for its actual

language and complete content. Brigadoon otherwise denies the allegations of this paragraph.

29. 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:

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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

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

permission” 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 Opt- Out Notice Requirements has, by definition, transmitting 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 invitation or permission” to receive the fax nor can the sender

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

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ANSWER: This paragraph states a legal conclusion to which no response is required.

To the extent a response is required, Brigadoon admits that the referenced statute contains the

language quoted in this paragraph. Brigadoon refers to the referenced statute for its actual

language and complete content. Brigadoon otherwise denies the allegations of this paragraph.

30. The Fax. Defendants sent the advertisement on or about April 17, 2013, 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

constituted an advertisement under 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/or Defendants are precluded from asserting any

prior express invitation or permission or that Defendants had an established business relationship

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 JFPA 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 filings of this case through the present.

ANSWER: Denied.

31. 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 JFPA that

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were transmitted to persons or entities without their prior express invitation or permission

(and/or that Defendants are precluded from asserting any prior express invitation or permission

or that Defendants had an established business relationship 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 may be continuing to

send unsolicited and advertisements via facsimile transmission in violation of the JFPA and the

regulations promulgated thereunder, and absent intervention by the Court, will do so in the

future.

ANSWER: Denied.

32. 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. ANSWER: This paragraph states a legal conclusion to which no response is required.

To the extent a response is required, Brigadoon refers to the statute referenced in this paragraph

for the actual language and complete content. Brigadoon otherwise denies the allegations of this

paragraph.

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

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

ANSWER: This paragraph states a legal conclusion to which no response is required.

To the extent a response is required, Brigadoon refers to the statute referenced in this paragraph

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for the actual language and complete content. Brigadoon otherwise denies the allegations of this

paragraph.

34. 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’ products, goods or services; (b) the Plaintiff and the

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

transmitted advertisements; (d) the Faxes did not contain the required Opt-Out Notice; and (E)

Defendants’ transmission of advertisements that did not contain the required opt-out notice or

were sent without prior express invitation or permission was unlawful.

ANSWER: Denied.

35. 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’ faxes used the

Plaintiff’s and the other class members time, as the Plaintiff and the other class members and

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

faxes. That time otherwise would have been spent on the Plaintiff’s and the other class

members’ business activities. The Defendants’ faxes unlawfully interrupted the Plaintiff’s and

other class members’ privacy interests in being left alone.

ANSWER: Denied.

AFFIRMATIVE DEFENSES

1. Plaintiff fails to state a claim upon which relief can be granted.

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2. Plaintiff’s claims are barred, in whole or in part, because Plaintiff had an

established business relationship with Brigadoon and Plaintiff consented and gave Brigadoon

prior express permission or consent to send the facsimile of which it now complains.

3. Plaintiff’s claims are barred, in whole or in part, because the Federal

Communications Commission’s regulations regarding the enforcement of the TCPA and JFPA

are invalid. The regulations are arbitrary and capricious, unsupported by the record, and/or

exceed the FCC’s statutory authority. For example, the FCC’s regulations requiring opt out

notices on facsimiles sent to customers who have provided prior express permission or consent to

receive communications by facsimile is invalid. Moreover, Brigadoon has filed a retroactive

petition with the FCC, pursuant to its October 30, 214 Order, 29 FCC Rcd. 13, 998, to obtain a

retroactive waiver of its opt out notice regulations.

4. Plaintiff’s claims are barred, in whole or in part, by the applicable statute of

limitations.

5. Plaintiff’s claims are barred, in whole or in part, by the doctrine of equitable

estoppel and/or unclean hands. Brigadoon reasonably relied, in good faith, on Plaintiff’s prior

conduct indicating its consent to receive the facsimile of which Plaintiff now complains.

6. Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches.

7. Plaintiff’s claims are barred, in whole or in part, by Plaintiff’s waiver.

8. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has suffered no

injury in fact and lacks standing under Article III of the U.S. Constitution.

9. Plaintiff’s claims are barred, in whole or in part, by Plaintiff’s failure to mitigate

damages.

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10. Plaintiff’s claims are barred, in whole or in part, because the damages provisions

under the TCPA and JFPA (and any associated regulations) violate the due process clause of the

Fifth and Fourteenth Amendments to the U.S. Constitution.

11. Plaintiff’s claims are barred, in whole or in part, because the damages provisions

under the TCPA and JFPA (and any associated regulations) violate the Eighth and Fourteenth

Amendments to the U.S. Constitution by imposing excessive fines that are wholly dis- proportionate to any de minimus harm.

12. Plaintiff’s claims are barred, in whole or in part, because the TCPA violates the

First Amendment to the U.S. Constitution as an overly broad prohibition against free speech on

its face and as applied.

13. Plaintiff’s claims are barred, in whole or in part, because the facsimile at issue is

not an unsolicited advertisement as defined by the JFPA/TCPA.

14. Plaintiff’s claims are barred, in whole or in part, because any recovery awarded to

Plaintiff would constitute unjust enrichment.

15. Brigadoon reserves the right to assert additional defenses upon further

investigation of plaintiff’s claims, upon examination of the documents provided, upon discovery

of further information concerning the alleged damage claims and upon the development of other

pertinent information.

WHEREFORE, Defendants pray that Plaintiff takes nothing by reason of its Complaint,

that judgment be entered against Plaintiff and in favor of Defendants, that Defendants recover all

expenses and costs in connection with this lawsuit, and that the Court grant Defendants such

other and further relief as it deems just and proper.

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JURY DEMAND

Pursuant to Federal Rule of Civil Procedure 38(b), Defendants hereby demand trial by

jury on all issues so triable.

Dated: November 8, 2016

Respectfully submitted,

s/ D. Randall Brown

D. Randall Brown (#15127-49)

(randy.brown@btlaw.com)

Jason T. Clagg (#24123-02)

(jason.clagg@btlaw.com)

Barnes & Thornburg LLP

888 S. Harrison Street

Suite 600

Fort Wayne, Indiana 46802

Telephone: (260) 423-9440

Facsimile: (260) 424-8316

Steven R. Shine (#299-02)

(sshine@shineandhardin.com)

Justin T. Molitoris (#32076-02)

(jmolitoris@shineandhardin.com)

SHINE & HARDIN LLP

2810 Beaver Avenue

Fort Wayne, Indiana 46807

Telephone: (260) 745-1970

Facsimile: (260) 744-5411

ATTORNEYS FOR DEFENDANTS, BRIGADOON FITNESS INC. and

BRIGADOON FINANCIAL, INC.

USDC IN/ND case 1:16-cv-00330-HAB document 17 filed 11/08/16 page 20 of 21
21

CERTIFICATE OF SERVICE

I hereby certify that on November 8, 2016, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which sent notice of such filing to the following:

Brian J. Wanca

Anderson + Wanca

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

s/ D. Randall Brown

DMS 4372205v1

USDC IN/ND case 1:16-cv-00330-HAB document 17 filed 11/08/16 page 21 of 21