IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DR. ROBERT GERBER, )

on behalf of plaintiff and )

the class members defined herein, )

)

Plaintiff, )

)

v. )

)

CAREPOINT HEALTHCARE, LLC, )

and JOHN DOES 1-10, )

)

Defendants. )

COMPLAINT – CLASS ACTION

MATTERS COMMON TO MULTIPLE COUNTS

INTRODUCTION

1. Plaintiff, Dr. Robert Gerber, brings this action to secure redress for the actions of

Defendant, Carepoint Healthcare, LLC, in sending or causing the sending of unsolicited

advertisements to telephone facsimile machines (Exhibit A) in violation of the Telephone

Consumer Protection Act, 47 U.S.C. §227 (“TCPA”), the Illinois Consumer Fraud Act, 815

ILCS 505/2 (“ICFA”), and the common law.

2. The TCPA expressly prohibits unsolicited fax advertising. Unsolicited fax

advertising damages the recipients. The recipient is deprived of its paper and ink or toner and

the use of its fax machine. The recipient also wastes valuable time it would have spent on

something else. Unsolicited faxes prevent fax machines from receiving and sending authorized

faxes, cause wear and tear on fax machines, and require labor to attempt to identify the source

and purpose of the unsolicited faxes.

1

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 1 of 20 PageID #:1
PARTIES

3. Plaintiff Dr. Robert Gerber is an individual with offices at 800 Austin Street, 

West Tower, Suite 508, Evanston, Illinois 60202, where he maintains a telephone facsimile

machine that automatically prints on paper using toner/ ink.

4. Defendant Carepoint Healthcare, LLC, is an Illinois limited liability company

with principal offices at 9 E. Commerce Dr., Schaumburg, IL 60173. Its registered agent is

Bhavesh Patel at that address. 

5. John Does 1-10 are other natural or artificial persons that were involved in the

sending of the facsimile advertisements described below. Plaintiff does not know who they are. 

JURISDICTION AND VENUE

6. This Court has jurisdiction under 28 U.S.C. §§1331 and 1367. Mims v. Arrow

Financial Services, LLC, 132 S. Ct. 740, 751-53 (2012); Brill v. Countrywide Home Loans, Inc.,

427 F.3d 446 (7th Cir. 2005). 

7. Personal jurisdiction exists under 735 ILCS 5/2-209, in that Defendants:

a. Have committed tortious acts in Illinois by causing the transmission of

unlawful communications into the state.

b. Have transacted business in Illinois.

c. Are located in Illinois.

8. Venue in this District is proper for the same reason.

2

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 2 of 20 PageID #:2
FACTS

9. On or about March 20, 2020, Dr. Robert Gerber, received the unsolicited fax

advertisement attached as Exhibit A on his facsimile machine. 

10. Exhibit A was sent by Defendant Carepoint Healthcare, LLC and advertises

hydroxychlorohydroquinone tablets.

11. Discovery may reveal the transmission of additional faxes as well. 

12. Defendant Carepoint Healthcare, LLC is responsible for sending or causing the

sending of the fax.

13. Defendant Carepoint Healthcare, LLC is engaged in the business of

manufacturing and marketing healthcare products to and through doctors and others.

14. On information and belief, the price of $40 for 20 x 200 mg chlorohydroquinone

tablets is about double the normal price. 

15. Other sellers are requiring proof of one of the conditions for which

chlorohydroquinone is prescribed, and denying requests outside prescriber’s normal field of

practice, to prevent hoarding of a drug which may be useful in treating COVID-19.

16. Large amounts of hydroquinone tablets are being furnished to hospitals and 

others actively treating COVID-19 patients free of charge, either pursuant to FDA trials or

gratuitously by manufacturers.

17. Defendant sent the faxes to practitioners who would not ordinarily treat

COVID-19 or anything else for which chlorohydroquinone is normally used, such as Plaintiff, a

podiatrist. 

18. On information and belief, the ad is an invitation to purchase at excessive price

3

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 3 of 20 PageID #:3
and hoard in an attempt to capitalize on people’s fears over the COVID19 crisis. 

19. Defendant Carepoint Healthcare, LLC thus derived economic benefit from the

sending of the faxes.

20. Defendant either negligently or wilfully violated the rights of Plaintiff and

other recipients in sending the faxes. 

21. Plaintiff had no prior relationship with Defendant and had not authorized the

sending of fax advertisements to Plaintiff.

22. On information and belief, the fax attached hereto was sent as part of a mass

broadcasting of faxes.

23. On information and belief, Defendant directed the sending of the fax

advertisements from Illinois and has transmitted similar unsolicited fax advertisements to at least

40 other persons in Illinois.

24. There is no reasonable means for Plaintiff or other recipients of Defendant’s

unsolicited advertising faxes to avoid receiving illegal faxes. Fax machines must be left on and

ready to receive the urgent communications authorized by their owners.

COUNT I – TCPA

25. Plaintiff incorporates ¶¶ 1-24. 

26. The TCPA makes unlawful the “use of any telephone facsimile machine, 

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

...” 47 U.S.C. §227(b)(1)(C).

27. The TCPA, 47 U.S.C. §227(b)(3), provides:

Private right of action.

4

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 4 of 20 PageID #:4
A person or entity may, if otherwise permitted by the laws or rules of court

of a State, bring in an appropriate court of that State–

(A) an action based on a violation of this subsection or the regulations

prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a

violation, or to receive $500 in damages for each such violation,

whichever is greater, or

(C) both such actions.

If the Court finds that the defendant willfully or knowingly violated this

subsection or the regulations prescribed under this subsection, the court

may, in its discretion, increase the amount of the award to an amount equal

to not more than 3 times the amount available under the subparagraph (B) of

this paragraph.

28. Plaintiff and each class member suffered damages as a result of receipt of the

unsolicited faxes, in the form of paper and ink or toner consumed as a result. Furthermore,

Plaintiff’s statutory right of privacy was invaded.

29. Plaintiff and each class member is entitled to statutory damages.

30. Defendant violated the TCPA even if its actions were only negligent.

31. Defendant should be enjoined from committing similar violations in the future.

CLASS ALLEGATIONS

32. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), Plaintiff brings this claim on behalf of 

a class. The class consists of (a) all persons with fax numbers (b) who, on or after a date four

years prior to the filing of this action (28 U.S.C. §1658), (c)were sent faxes by or on behalf of

Carepoint Healthcare, LLC promoting goods or services, (d) with respect to which Defendant

did not have evidence of consent or an established business relationship prior to sending the fax.

33. The class is so numerous that joinder of all members is impractical. Plaintiff

5

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 5 of 20 PageID #:5
alleges on information and belief that there are more than 40 members of the class.

34. 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:

a. Whether Defendant engaged in a pattern of sending unsolicited fax

advertisements;

b. The manner in which Defendant compiled or obtained its list of fax

numbers; and 

c. Whether Defendant thereby violated the TCPA.

35. 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. Neither Plaintiff nor Plaintiff's counsel have any interests which might cause them not

to vigorously pursue this action. 

36. Plaintiff’s claims are typical of the claims of the class members. All are based on

the same factual and legal theories.

37. 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 against Defendant is small because it is not economically feasible to bring

individual actions.

38. Numerous courts have certified class actions under the TCPA. Holtzman v.

Turza, No. 08 C 2014, 2009 WL 3334909 (N.D.Ill. Oct. 14, 2009), aff’d in part, rev’d in part,

vacated in part, 728 F.3d 682 (7th Cir. 2013); Ballard RN Center, Inc. v. Kohll's Pharmacy and

6

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 6 of 20 PageID #:6
Homecare, Inc. 2015 IL 118644, 48 N.E.3d 1060; American Copper & Brass, Inc. v. Lake City

Indus. Products, Inc., 757 F.3d 540, 544 (6th Cir. 2014); In re Sandusky Wellness Center, LLC,

570 Fed.Appx. 437, 437 (6th Cir. 2014); Sandusky Wellness Center, LLC v. Medtox Scientific,

Inc., 821 F.3d 992, 998 (8th Cir. 2016); Sadowski v. Med1 Online, LLC, No. 07 C 2973, 2008

WL 2224892 (N.D.Ill. May 27, 2008); CE Design Ltd. v. Cy’s Crabhouse North, Inc., 259

F.R.D. 135 (N.D.Ill. 2009); Targin Sign Systems, Inc. v. Preferred Chiropractic Center, Ltd.,

679 F.Supp.2d 894 (N.D.Ill. 2010); Garrett v. Ragle Dental Laboratory, Inc., No. 10 C 1315,

2010 WL 4074379 (N.D.Ill. Oct. 12, 2010); Hinman v. M&M Rental Center, Inc., 545 F.Supp.2d

802 (N.D.Ill. 2008); Clearbrook v. Rooflifters, LLC, No. 08 C 3276, 2010 U.S.Dist. LEXIS

72902 (N.D.Ill. July 20, 2010) (Cox, M.J.); G.M. Sign, Inc. v. Group C Communications, Inc.,

No. 08-cv-4521, 2010 WL 744262 (N.D.Ill. Feb. 25, 2010); Kavu, Inc. v. Omnipak Corp., 246

F.R.D. 642 (W.D.Wash. 2007); Display South, Inc. v. Express Computer Supply, Inc., 961 So.2d

451, 455 (La.App. 2007); Display South, Inc. v. Graphics House Sports Promotions, Inc., 992

So.2d 510 (La.App. 2008); Lampkin v. GGH, Inc., 146 P.3d 847 (Ok.App. 2006); ESI Ergonomic

Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. 94, 50 P.3d 844 (2002); Core

Funding Group, LLC v. Young, 792 N.E.2d 547 (Ind.App. 2003); Critchfield Physical Therapy v.

Taranto Group, Inc., 293 Kan. 285, 263 P.3d 767 (2011); Karen S. Little, L.L.C. v. Drury Inns,

Inc., 306 S.W.3d 577 (Mo.App. 2010); Lindsay Transmission, LLC v. Office Depot, Inc., No.

4:12-CV-221 (CEJ), 2013 WL 275568 (E.D.Mo. Feb. 24, 2013).

39. Management of this class action is likely to present significantly fewer difficulties

that those presented in many class actions, e.g. for securities fraud.

7

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 7 of 20 PageID #:7
WHEREFORE, Plaintiff requests that the Court enter judgment in favor of

Plaintiff and the class and against Defendants for:

a. Actual damages;

b. Statutory damages;

c. An injunction against the further transmission of unsolicited fax

advertising;

d. Costs of suit;

e. Such other or further relief as the Court deems just and proper.

COUNT II – ILLINOIS CONSUMER FRAUD ACT

40. Plaintiff incorporates ¶¶ 1-24. 

41. Defendant engaged in unfair acts and practices, in violation of ICFA § 2, 815

ILCS 505/2, by sending unsolicited fax advertising to Plaintiff and others.

42. Unsolicited fax advertising is contrary to the TCPA and also Illinois law. 720

ILCS 5/26-3(b) makes it a petty offense to transmit unsolicited fax advertisements to Illinois

residents.

43. Defendant engaged in an unfair practice and an unfair method of competition by

engaging in conduct that is contrary to public policy, unscrupulous, and caused injury to

recipients of their advertising.

44. Plaintiff and each class member suffered damages as a result of receipt of the

unsolicited faxes, in the form of paper and ink or toner consumed as a result. 

45. Defendant engaged in such conduct in the course of trade and commerce.

46. Defendant’s conduct caused recipients of their advertising to bear the cost thereof.

8

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 8 of 20 PageID #:8
This gave Defendant an unfair competitive advantage over businesses that advertise lawfully,

such as by direct mail. For example, an advertising campaign targeting one million recipients

would cost $500,000 if sent by U.S. mail but only $20,000 if done by fax broadcasting. The

reason is that instead of spending $480,000 on printing and mailing his ad, the fax broadcaster

misappropriates the recipients’ paper and ink. “Receiving a junk fax is like getting junk mail

with the postage due”. Remarks of Cong. Edward Markey, 135 Cong Rec E 2549, Tuesday,

July 18, 1989, 101st Cong. 1st Sess.

 47. Defendant’s shifting of advertising costs to Plaintiff and the class members in this

manner makes such practice unfair. In addition, Defendant’s conduct was contrary to public

policy, as established by the TCPA and Illinois statutory and common law.

48. Defendant should be enjoined from committing similar violations in the future.

CLASS ALLEGATIONS

49. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), Plaintiff brings this claim on behalf of 

a class. The class consists of (a) all persons with fax numbers (b) who, on or after a date 3 years

prior to the filing of this action (815 ILCS 505/10a), (c) were sent faxes by or on behalf of

Carepoint Healthcare, LLC promoting goods or services, (d) with respect to which Defendant

did not have evidence of consent or an established business relationship prior to sending the fax. 

50. The class is so numerous that joinder of all members is impractical. Plaintiff

alleges on information and belief that there are more than 40 members of the class.

51. 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:

9

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 9 of 20 PageID #:9
a. Whether Defendant engaged in a pattern of sending unsolicited fax

advertisements; and

b. Whether Defendant thereby engaged in unfair acts and practices, in

violation of the ICFA.

52. 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. Neither Plaintiff nor Plaintiff's counsel have any interests which might cause them not

to vigorously pursue this action. 

53. Plaintiff’s claims are typical of the claims of the class members. All are based on

the same factual and legal theories.

54. 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 against Defendant is small because it is not economically feasible to bring

individual actions.

55. Management of this class action is likely to present significantly fewer difficulties

that those presented in many class actions, e.g. for securities fraud.

WHEREFORE, Plaintiff requests that the Court enter judgment in favor of

Plaintiff and the class and against Defendants for:

a. Appropriate damages;

b. An injunction against the further transmission of unsolicited fax

advertising;

c. Attorney’s fees, litigation expenses and costs of suit;

10

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 10 of 20 PageID #:10
d. Such other or further relief as the Court deems just and proper.

COUNT III – CONVERSION

56. Plaintiff incorporates ¶¶ 1-24. 

57. By sending Plaintiff and the class members unsolicited faxes, Defendant 

converted to its own use ink or toner and paper belonging to Plaintiff and the class members.

58. Immediately prior to the sending of the unsolicited faxes, Plaintiff and the class

members owned and had an unqualified and immediate right to the possession of the paper and

ink or toner used to print the faxes.

59. By sending the unsolicited faxes, Defendant appropriated to its own use the

paper and ink or toner used to print the faxes and used them in such manner as to make them

unusable. Such appropriation was wrongful and without authorization. 

60. Defendant knew or should have known that such appropriation of the paper and

ink or toner was wrongful and without authorization. 

61. Plaintiff and the class members were deprived of the paper and ink or toner, 

which could no longer be used for any other purpose. Plaintiff and each class member thereby

sufferesd damages as a result of receipt of the unsolicited faxes.

62. Defendant should be enjoined from committing similar violations in the future.

CLASS ALLEGATIONS

63. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), Plaintiff brings this claim on behalf of 

a class. The class consists of (a) all persons with fax numbers (b) who, on or after a date 5 years

prior to the filing of this action, (c) were sent faxes by or on behalf of Carepoint Healthcare, LLC

11

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 11 of 20 PageID #:11
promoting goods or services, (d) with respect to which Defendant did not have evidence of

consent or an established business relationship prior to sending the fax.

64. The class is so numerous that joinder of all members is impractical. Plaintiff

alleges on information and belief that there are more than 40 members of the class.

65. 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:

a. Whether Defendant engaged in a pattern of sending unsolicited fax

advertisements; and

 b. Whether Defendant thereby converted the property of Plaintiff.

66. 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. Neither Plaintiff nor Plaintiff’s counsel have any interests which might cause them not

to vigorously pursue this action. 

 67. Plaintiff’s claims are typical of the claims of the class members. All are based on

 the same factual and legal theories.

 68. 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 against Defendant is small because it is not economically feasible to bring

individual actions.

 69. Management of this class action is likely to present significantly fewer difficulties

that those presented in many class actions, e.g. for securities fraud.

12

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 12 of 20 PageID #:12
WHEREFORE, Plaintiff requests that the Court enter judgment in favor of

Plaintiff and the class and against Defendants for:

a. Appropriate damages;

b. An injunction against the further transmission of unsolicited fax

advertising;

c. Costs of suit;

d. Such other or further relief as the Court deems just and proper.

COUNT IV – TRESPASS TO CHATTELS

70. Plaintiff incorporates ¶¶ 1-24. 

71. Plaintiff and the class members were entitled to possession of the equipment they

used to receive faxes.

72. Defendant’s sending Plaintiff and the class members unsolicited faxes interfered

with their use of the receiving equipment and constitutes a trespass to such equipment. Chair

King v. Houston Cellular, 95cv1066, 1995 WL 1693093 at *2 (S.D. Tex. Nov. 7, 1995) (denying

a motion to dismiss with respect to Plaintiff's trespass to chattels claim for unsolicited faxes),

vacated on jurisdictional grounds 131 F.3d 507 (5th Cir. 1997).

73. Defendant acted either intentionally or negligently in engaging in such conduct.

74. Plaintiff and each class member suffered damages as a result of receipt of the

unsolicited faxes.

75. Defendant should be enjoined from continuing trespasses.

CLASS ALLEGATIONS

76. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), Plaintiff brings this claim on behalf of 

13

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 13 of 20 PageID #:13
a class. The class consists of (a) all persons with fax numbers (b) who, on or after a date 5 years

prior to the filing of this action, (c) were sent faxes by or on behalf of Carepoint Healthcare, LLC

promoting goods or services, (d) with respect to which Defendant did not have evidence of

consent or an established business relationship prior to sending the fax.

77. The class is so numerous that joinder of all members is impractical. Plaintiff

alleges on information and belief that there are more than 40 members of the class.

78. 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:

a. Whether Defendant engaged in a pattern of sending unsolicited fax

advertisements; and

b. Whether Defendant thereby committed a trespass to chattels.

79. 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. Neither Plaintiff nor Plaintiff’s counsel have any interests which might cause them not

to vigorously pursue this action. 

80. Plaintiff’s claims are typical of the claims of the class members. All are based on

 the same factual and legal theories.

81. 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 against Defendant is small because it is not economically feasible to bring

individual actions.

14

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 14 of 20 PageID #:14
82. Management of this class action is likely to present significantly fewer difficulties

that those presented in many class actions, e.g. for securities fraud.

WHEREFORE, Plaintiff requests that the Court enter judgment in favor of

Plaintiff and the class and against Defendants for:

a. Appropriate damages;

b. An injunction against the further transmission of unsolicited fax

advertising;

c. Costs of suit;

d. Such other or further relief as the Court deems just and proper.

s/ Daniel A. Edelman

Daniel A. Edelman

Daniel A. Edelman

Cathleen M. Combs

Dulijaza (Julie) Clark

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

20 S. Clark Street, Suite 1500

Chicago, Illinois 60603

(312) 739-4200

(312) 419-0379 (FAX)

courtecl@edcombs.com

15

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 15 of 20 PageID #:15
NOTICE OF LIEN AND ASSIGNMENT

 Please be advised that we claim a lien upon any recovery herein for 1/3 or such amount as

a court awards. All rights relating to attorney’s fees have been assigned to counsel.

s/ Daniel A. Edelman

Daniel A. Edelman

Daniel A. Edelman

EDELMAN, COMBS, LATTURNER

& GOODWIN, LLC

20 S. Clark Street, Suite 1500

Chicago, Illinois 60603

(312) 739-4200

(312) 419-0379 (FAX)

16

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 16 of 20 PageID #:16
DOCUMENT PRESERVATION DEMAND

Plaintiff hereby demands that Defendants take affirmative steps to preserve all recordings, 

data, documents, and all other tangible things that relate to Plaintiff, the events described herein, 

any third party associated with any telephone call, campaign, account, sale or file associated with 

Plaintiff, and any account or number or symbol relating to them. These materials are likely very 

relevant to the litigation of this claim. If Defendants are aware of any third party that has 

possession, custody, or control of any such materials, Plaintiff demands that Defendants request 

that such third party also take steps to preserve the materials. This demand shall not narrow the 

scope of any independent document preservation duties of the Defendants. 

s/ Daniel A. Edelman

Daniel A. Edelman

17

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 17 of 20 PageID #:17
EXHIBIT A

Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 18 of 20 PageID #:18
Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 19 of 20 PageID #:19
Case: 1:20-cv-02298 Document #: 1 Filed: 04/13/20 Page 20 of 20 PageID #:20