UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CAMP DRUG STORE, INC., individually and 

as the representative of a class of similarlysituated persons,

Plaintiff,

v.

ARKRAY USA, INC.

Defendant.

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No. 

CLASS ACTOIN

CLASS ACTION COMPLAINT

Plaintiff Camp Drug Store, Inc. (“Camp Drug” or “Plaintiff”), brings this action 

on behalf of itself and all other persons similarly-situated and, except as to those 

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

personal knowledge except as stated otherwise, allege the following upon information 

and belief against defendant Arkray USA, Inc. (“Arkray” or “Defendant”): 

PRELIMINARY STATEMENT 

1. On behalf of itself and the class, Plaintiff seeks statutory damages and

other relief from Defendant’s practice of sending unsolicited advertisements by 

facsimile.

2. Defendant sent advertisements by facsimile in an attempt to market

and sell property, goods, or services. 

20-cv-02511

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3. The federal Telephone Consumer Protection Act, 47 USC § 227 (the

“TCPA”), prohibits any person or entity from sending or having an agent send any 

“unsolicited advertisement” by facsimile (“junk faxes” or “unsolicited faxes”).

4. The TCPA mandates that if a person or entity sends an otherwiseunsolicited advertisement by facsimile to a fax recipient with which the sender has 

an “established business relationship,” then the sender must include a specific, clear, 

and conspicuous opt-out notice on the first page of the advertisement. See 47 U.S.C. 

§ 227 (b) (2) (D); and 47 C.F.R. § 64.1200 (a) (4) (iii).

5. The TCPA provides a private right of action and provides minimum

statutory damages of $500 per violation. If the Court finds the advertisements were 

sent knowingly or willfully, then the Court can increase the damages up to three 

times $500. 

6. Unsolicited faxes damage their recipients. 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 tie up telephone lines, prevent 

fax machines from receiving authorized faxes, prevent their use for authorized 

outgoing faxes, use paper and ink toner for the sender’s marketing purposes, 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.

7. On behalf of itself and all others similarly-situated, Plaintiff brings this

case as a class action asserting claims against Defendant under the TCPA and the 

common law of conversion. 

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8. Plaintiff seeks an award of statutory damages for each violation of the 

TCPA. 

PARTIES, JURISDICTION AND VENUE

9. Plaintiff Camp Drug Store, Inc. is an Illinois corporation with its 

principal place of business in Wood River, Illinois.

10. Defendant Arkray is a Delaware corporation with its principal place of 

business in Minneapolis, Minnesota.

11. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 

47 U.S.C. § 227. The Court has supplemental jurisdiction over Plaintiff’s conversion 

claim under 28 U.S.C. 1367.

12. Personal jurisdiction exists over Defendant because it transacted 

business and committed tortious acts within this State.

13. Venue is proper because Defendant transacts business and committed 

statutory torts within this District.

FACTS 

14. Defendant is engaged in the business of manufacturing and providing 

medical devices for diabetes management and urine analysis. 

15. On information and belief, Defendant sent advertisements in fax 

broadcasts to one or more lists of targeted recipients throughout the United States 

and throughout the class period alleged herein. At least one of those faxes was sent 

to Plaintiff on April 23, 2020, a copy of which is attached as Exhibit A.

16. The fax attached as Exhibit A advertised the commercial availability or 

quality of Defendant’s property, goods, or services. 

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17. Plaintiff is among the persons to whom Defendant sent advertisements

by fax. 

18. Plaintiff did not expressly invite or give permission to receive

advertisements by fax from Defendant. 

19. Defendant’s fax did not contain the opt-out notices required by the

TCPA. See, e.g., Exhibit A. 

20. On information and belief, Defendant sent faxes to Plaintiff and more

than 39 other recipients without their prior express permission or invitation, and 

without the opt-out notice required on faxes sent to persons with whom Defendant 

can demonstrate an “established business relationship.” This allegation is based, in 

part, on the fact that Plaintiff never expressly invited or permitted anyone to send 

the subject fax advertisement to it, that the fax attached as Exhibit A is a generic 

form fax, that sending advertisements by fax is an inexpensive way to reach a wide 

audience, and that the fax attached as Exhibit A has no opt-out notice. 

CLASS REPRESENTATION ALLEGATIONS 

21. Plaintiff brings this action as a class action on behalf of itself and a class

of all others similarly-situated as members of the class, initially defined as follows:

All persons sent at least one telephone facsimile message (a “fax”): (1) 

on or after April 23, 2016; (2) from or on behalf of Arkray; (3) advertising 

Arkray’s property, goods, or services; (4) without the fax recipient’s prior 

express invitation or permission; and (5) without the clear and 

conspicuous opt-out notice required by 47 C.F.R. § 64.1200 (a) (4) (iii).

Plaintiff anticipates modifying the proposed class definition—including proposing 

subclasses if appropriate—after discovery about the scope of Defendant’s fax 

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advertising practices as well as discovery as to any potential affirmative defenses 

Defendant may plead.

22. Excluded from the class are Defendant, any entity in which Defendant

has a controlling interest, Defendant’s employees, officers and directors, Defendant’s

legal representatives, heirs, successors, and assigns, and any Judge assigned to this 

action, and his or her family.

23. On information and belief, Defendant’s fax advertising campaigns

involved other, substantially-similar advertisements also sent without the opt-out 

notice required by the TCPA. Plaintiff intends to locate those advertisements in 

discovery. See Exhibit B, a Demand for Preservation of All Tangible Documents 

Including Electronically Stored Information.

24. This action is brought, and may properly be maintained as, a class action

under Fed. R. Civ. P. 23. This action satisfies Rule 23 (a)’s numerosity, commonality, 

typicality, and adequacy requirements. Additionally, prosecution of Plaintiff’s claims 

separately from the putative class’s claims would create a risk of inconsistent or 

varying adjudications under Rule 23 (b) (1) (A). Furthermore, the questions of law or 

fact that are common in this action predominate over any individual questions of law 

or fact making class representation the superior method to adjudicate this 

controversy under Rule 23 (b) (3).

25. Numerosity/Impracticality of Joinder: On information and belief, the

class includes more than thirty-nine persons and, thus, is so numerous that joinder 

of all members is impracticable. The precise number of class members and their 

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identities are unknown to Plaintiff, but can be obtained from Defendant’s records or 

the records of third parties.

26. Commonality and Predominance: There is a well-defined community of 

interest and common questions of law and fact that predominate over any question 

affecting only individual members of the class. These common legal and factual 

questions, which do not vary from one class member to another, and which may be 

determined without reference to the individual circumstances of any class member, 

include, but are not limited to the following:

a. Whether Defendant sent unsolicited advertisements by fax; 

b. Whether Defendant’s faxes advertised the commercial 

availability or quality of property, goods, or services;

c. The manner and method Defendant used to compile or obtain the 

lists of fax numbers to which they sent advertisements by fax; 

d. Whether Defendant faxed advertisements without first obtaining 

the recipients’ express permission or invitation;

e. Whether Defendant included clear and conspicuous opt-out 

notices on its faxed advertisements, including all content the TCPA requires;

f. Whether Defendant is directly or vicariously liable for violating 

the TCPA;

g. Whether Plaintiff and the other class members are entitled to 

statutory damages;

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h. Whether Defendant should be enjoined from faxing 

advertisements in the future;

i. Whether the Court should award trebled damages; and

j. Whether Defendant’s conduct constituted common law 

conversion.

27. Typicality of Claims: Plaintiff’s claims are typical of the claims of the 

other class members because Plaintiff and all class members were injured by the 

same wrongful practices. Plaintiff and the members of the class received Defendant’s 

advertisements by facsimile and those advertisements did not contain an opt-out 

notice as required by the TCPA. Under the facts of this case, because the focus is on 

Defendant’s conduct, if Plaintiff prevails on its claims, then the putative class 

members will prevail as well. 

28. Adequacy of Representation: Plaintiff is an adequate representative of 

the class because its interests do not conflict with the interests of the class it seeks to 

represent. Plaintiff retained counsel competent and experienced in complex class action 

litigation, and TCPA litigation in particular, and Plaintiff intends to vigorously prosecute 

this action. Plaintiff and its counsel will fairly and adequately protect the interest of 

members of the class.

29. Prosecution of Separate Claims would yield Inconsistent Results: Even 

though the questions of fact and law in this action are predominantly common to Plaintiff 

and the putative class members, separate adjudication of each class member’s claims would 

yield inconsistent and varying adjudications. Such inconsistent rulings would create 

incompatible standards for Defendant to operate under if or when class members bring 

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additional lawsuits concerning the same unsolicited fax advertisements or if Defendant

chooses to advertise by fax again in the future.

30. A Class Action is the Superior Method of Adjudicating the Common 

Questions of Law or Fact that Predominate over Individual Questions: A class action 

is superior to other available methods for the fair and efficient adjudication of this lawsuit 

because individual litigation of the claims of all class members is economically unfeasible and 

procedurally impracticable. The likelihood of individual class members prosecuting separate 

claims is remote, and even if every class member could afford individual litigation, the court 

system would be unduly burdened by individual litigation of such cases. Plaintiff knows of 

no difficulty to be encountered in the management of this action that would preclude its 

maintenance as a class action. Relief concerning Plaintiff’s rights under the laws herein 

alleged and with respect to the class would be proper. Plaintiff envisions no difficulty in the 

management of this action as a class action.

COUNT I 

TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 

31. Plaintiff incorporates the preceding paragraphs as though fully set forth 

herein.

32. Plaintiff brings Count I on behalf of itself and a class of similarlysituated persons.

33. The TCPA prohibits 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).

34. The TCPA defines “unsolicited advertisement,” as “any material 

advertising the commercial availability or quality of any property, goods, or services 

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which is transmitted to any person without that person’s express invitation or 

permission.” 47 U.S.C. § 227 (a) (4).

35. The TCPA provides:

3. Private right of action. A person 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.

47 U.S.C. § 227 (b) (3).

36. In relevant part, the TCPA states that “[t]he [Federal Communications] 

Commission shall prescribe regulations to implement the requirements of this 

subsection . . . in implementing the requirements of this subsection, the Commission 

shall provide that a notice contained in an unsolicited advertisement complies with 

the requirements under this subparagraph only if . . . (i) the notice is clear and 

conspicuous . . .” 47 U.S.C. § 227 (b) (2) (D) (i).

37. Additionally, “a notice contained in an unsolicited advertisement 

complies with the requirements under this subparagraph only if . . . (ii) the notice 

states that the recipient may make a request to the sender of the unsolicited 

advertisement not to send any future unsolicited advertisements to a telephone 

facsimile machine or machines and that failure to comply, within the shortest 

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reasonable time, as determined by the Commission, with such a request meeting the 

requirements under subparagraph (E) is unlawful . . .” 47 U.S.C. § 227 (b) (2) (D) (ii). 

The shortest reasonable time has been determined to be thirty (30) days. 47 C.F.R. § 

64.1200 (a) (4) (iii) (B).

38. The opt-out notice must also include “a domestic contact telephone and 

facsimile number for the recipient to transmit such a request to the sender” as well 

as a “cost-free mechanism for a recipient to transmit a request pursuant to such notice 

. . .” 47 U.S.C. § 227 (b) (2) (D) (iv).

39. “A notice contained in an unsolicited advertisement complies with the 

requirements under this subparagraph only if . . . (v) the telephone and facsimile 

machine numbers and the cost-free mechanism . . . permit an individual or business 

to make such a request at any time on any day of the week.” 47 U.S.C. § 227 (b) (2) 

(D) (v).

40. The FCC’s regulations of opt-out notices on facsimile advertisements are 

set forth at 47 C.F.R. § 64.1200 (a) (4) (iii)

41. The Court, in its discretion, can treble the statutory damages if the 

violation was knowing or willful. 47 U.S.C. § 227.

42. Defendant violated 47 U.S.C. § 227 et seq. by sending advertisements 

by fax to Plaintiff and the other class members without their prior express invitation 

or permission and, to the extent Defendant will contend it sent facsimiles on the basis 

of “established business relationship,” by failing to include the clear, conspicuous, and 

content-rich opt-out notice on the first page of each facsimile.

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43. Facsimile advertising imposes burdens on unwilling recipients that are 

distinct from those imposed by other types of advertising. The content of the required 

opt-out notice is designed to ensure that the recipients know how to prevent and avoid 

future fax transmissions of advertising material, and to provide the various cost-free 

means Congress required to be made available to do so. If senders do not clearly and 

conspicuously provide the opt-out content to the recipients, then the recipients are 

unable to stop the burdens imposed by this form of advertisement.

44. The TCPA is a strict liability statute and Defendant is liable to Plaintiff 

and the other class members even if its actions were negligent.

45. Defendant is liable because it sent the faxes, caused the faxes to be sent, 

participated in the activity giving rise to and/or constituting the violation, the faxes 

were sent on its behalf, and/or under general principles of vicarious liability 

applicable under the TCPA, including actual authority, apparent authority and 

ratification.

46. Defendant knew or should have known that Plaintiff and the other class 

members had not given express invitation or permission for Defendant or anybody 

else to send them advertisements by facsimile and that the faxes did not display the 

opt-out notices required by the TCPA (including the FCC’s regulations).

47. Defendant’s actions caused damages to Plaintiff and the other class

members. Receiving Defendant’s junk faxes caused the recipients to lose paper and 

toner consumed in the printing of Defendant’s faxes. Moreover, the subject faxes used 

Plaintiff’s and the class’ fax machines. The subject faxes cost Plaintiff time, as 

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Plaintiff and its employees wasted time receiving, reviewing and routing Defendant’s

illegal faxes. Time otherwise would have been spent on Plaintiff’s business activities.

Defendant’s faxes unlawfully interrupted Plaintiff’s and the 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 the faxes 

occurred outside Defendant’s premises.

48. Even if Defendant did not intend to cause damage to Plaintiff and the 

other class members, did not intend to violate their privacy, and did not intend to 

waste the recipients’ valuable time with Defendant’s advertisements, those facts are 

irrelevant because the TCPA is a strict liability statute.

WHEREFORE, Plaintiff, individually and on behalf of all others similarlysituated, demands judgment in its favor and against Defendant, as follows:

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

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

class, and appoint Plaintiff’s counsel as counsel for the class;

B. That the Court award $500.00 in statutory damages against Defendant 

for each of its violations of the TCPA;

C. That the Court treble the statutory damages to $1,500 per violation if it 

finds that Defendant knowingly or willfully violated the TCPA;

D. That the Court enter an injunction prohibiting Defendant from sending 

advertisements by fax without first demonstrating that it has obtained express 

invitation or permission to fax advertisements or included the required opt-out notice 

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on each advertisement sent by fax to a person with whom Defendant has an 

established business relationship; and

E. That the Court award costs and such further relief as the Court may 

deem just and proper.

COUNT II 

CONVERSION 

49. Plaintiff incorporates all paragraphs preceding Count I as though fully 

set forth herein. 

50. Plaintiff brings Count II on behalf of itself and a class of similarlysituated persons and alleging claims under the common law of conversion.

51. By sending unsolicited faxes to Plaintiff and the other class members, 

Defendant improperly and unlawfully converted their fax machines, toner and paper 

to Defendant’s own use. Defendant also converted the recipients’ time to its own 

marketing use.

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

the other class members owned an unqualified and immediate right to possession of 

their fax machines, paper, toner, and employee time.

53. By sending the unsolicited faxes, Defendant permanently 

misappropriated the class members’ fax machines, toner, paper, and employee time 

to its own use. Such misappropriation was wrongful and without authorization.

54. Defendant knew or should have known that its misappropriation of 

paper, toner, and employee time was wrongful and without authorization.

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55. Plaintiff and the other class members were deprived of the use of the fax 

machines, paper, toner, and employee time, which could no longer be used for any 

other purpose. Plaintiff and each class member thereby suffered damages as a result 

of their receipt of unsolicited fax advertisements from Defendant. 

56. Defendant’s unsolicited faxes that Plaintiff received effectively stole 

Plaintiff’s employees’ time by forcing one or more employees to receive, review, and 

act upon Defendant’s illegal faxes. Just the time spent in retrieving an unsolicited 

facsimile from the fax machine, reviewing it, and tossing it in the garbage can is 

burdensome and wasteful and converts Plaintiff valuable time to Defendant’s

marketing effort. Defendant knew or should have known employees’ time is valuable 

to Plaintiff and the other class members. 

WHEREFORE, Plaintiff, individually and on behalf of all others similarlysituated, demand judgment in its favor and against Defendant, as follows:

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

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

class, and appoint Plaintiff’s counsel as counsel for the class;

B. That the Court award appropriate damages; 

C. That the Court award punitive damages.

D. That the Court award reasonable attorney’s fees;

E. That the Court award costs of suit; and

F. That the Court award such further relief as it may deem just and proper.

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Respectfully submitted,

CAMP DRUG STORE, INC., individually and as the 

representative of a class of similarly-situated 

persons,

By: /s/ Phillip A. Bock

One of their attorneys 

Phillip A. Bock (ARDC #6224502) 

BOCK, HATCH, LEWIS & OPPENHEIM, LLC 

134 N. La Salle St., Ste. 1000 

Chicago, IL 60602 

Telephone: 312-658-5500 

Facsimile: 312-658-5555 

Email: service@classlawyers.com 

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