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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

KENNETH A. THOMAS MD, LLC, a

Connecticut limited liability company, individually and on behalf of all others

similarly situated, Plaintif , v. MEDGYN PRODUCTS, INC., an Illinois

corporation, Defendant.

Case no.

CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Kenneth A. Thomas MD, LLC (“Thomas” or “Plaintiff”) brings this Class

Action Complaint against MedGyn Products, Inc. (“MedGyn Products” or “Defendant”), to stop

its practice of sending unauthorized and unwanted fax advertisements, and to obtain redress for

all persons and entities similarly injured by its conduct. Plaintiff alleges as follows upon personal

knowledge as to itself and its own acts and experiences, and, as to all other matters, upon

information and belief, including investigation conducted by its attorneys. PARTIES

1. Plaintiff Kenneth A. Thomas MD, LLC is a Connecticut limited liability company

with its principal place of business in Stratford, Connecticut. 2. Defendant MedGyn Products is an Illinois corporation with its principal place of

business in Addison, Illinois. JURISDICTION & VENUE

3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

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§1331, as the action arises under the Telephone Consumer Protection Act, 47 U.S.C. §227

(“TCPA”), a federal statute for which there is federal question jurisdiction. 4. The Court has personal jurisdiction over Defendant and venue is proper in this

District because Defendant has its head office in this District and because Defendant’s wrongful

conduct was directed from this District. INTRODUCTION TO MEDGYN PRODUCTS

5. MedGyn Products manufactures and distributes medical decides for the women’s

healthcare industry.1

6. As part of an overall marketing plan to advertise its programs, services, and goods, MedGyn Products sends unsolicited faxes to doctors and their organizations. 7. The unsolicited faxes advertise the different products that MedGyn Products sell, including pricing for various items. 8. Defendant MedGyn Products sends these fax advertisements to individuals and

business with which it has no existing business relationship, and without express invitation or

permission, in violation of the TCPA. 9. MedGyn Products used an email to fax delivery system to send the fax

advertisements at issue, as seen in the faxes Plaintiff received:

10. The fax advertisements at issue failed to provide recipients with proper opt-out

1 https://www.linkedin.com/company/medgyn-products-inc./about/

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notice information required by the TCPA and implementing regulations. Specifically, the faxes

failed to provide notice identifying a facsimile number and domestic contact telephone number

for fax recipients to transmit their opt-out requests. FACTS SPECIFIC TO PLAINTIFF KENNETH A. THOMAS MD, LLC

11. On March 21, 2019 at 2:19, MedGyn Products sent 8 unsolicited faxed pages to

Plaintiff Thomas that advertising medical products and including pricing. (True and accurate

copies of the fax advertisements are attached hereto as Exhibit A). 12. The fax advertisements promoted the commercial availability and quality of

MedGyn Products and directed the recipient to visit MedGyn.com to view a full catalog:

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13. On February 24, 2020 at 11:14 AM, Plaintiff received a one-page unsolicited fax

from Defendant. This fax serves as an introduction to a new MedGyn Products territory manager

and also includes the advertisement of Defendant’s products including pricing:

14. The fax advertisements failed to contain the required opt-out notice mandated by

47 U.S.C. § 227(b)(2)(D) and 47 C.F.R. § 54.1200(a)(4)(iii)-(iv). Specifically, the faxes failed to

2 Page 1 of the 8-page faxes Plaintiff received on March 21, 2019

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contain any language that identified a facsimile number and telephone number for fax recipients

to transmit their opt-out requests. 15. Plaintiff never consented to receiving solicitation faxes from Defendant and does

not have an existing relationship with Defendant MedGyn Products. CLASS ACTION ALLEGATIONS

16. Class Definition: Plaintiff Thomas brings this action pursuant to Federal Rules of

Civil Procedure 23(b)(2) and 23(b)(3) individually and on behalf of the following Class:

All persons and entities in the United States who from four years prior to the

filing of the initial complaint in this action through class certification, (1) received

a facsimile advertisement, (2) on their fax machine, (3) sent from or on behalf of

MedGyn Products, and (4) for whom MedGyn Products claims to have obtained

consent in the same manner MedGyn Products claims to have obtained consent

from Plaintiff, or MedGyn Products does not claim to have obtained consent. The following individuals are excluded from the Class: (1) any Judge or Magistrate

presiding over this action and members of their families; (2) Defendant, its subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents have a

controlling interest and their current or former employees, officers and directors; (3)

Plaintiff’s attorneys; (4) persons who properly execute and file a timely request for

exclusion from the Class; (5) the legal representatives, successors or assigns of any such

excluded persons; and (6) persons whose claims against Defendant have been fully and

finally adjudicated and/or released. Plaintiff anticipates the need to amend the class

definitions following appropriate discovery. 17. Numerosity: The exact size of the Class is unknown and unavailable to Plaintiff

at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendant faxed unsolicited advertisements to thousands of individuals and entities who fall into

the definition of the Class. Class membership can be easily determined from Defendant’s

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records.18. Typicality: Plaintiff’s claims are typical of the claims of the other members of the

Class. Plaintiff is a member of the Class, and if Defendant violated the TCPA with respect to

Plaintiff, then it violated the TCPA with respect to the other members of the Class. Plaintiff and

the Class sustained damages as a result of Defendant’s uniform wrongful conduct. 19. Commonality and Predominance: There are many questions of law and fact

common to the claims of Plaintiff and the Class, and those questions predominate over any

questions that may affect individual members of the Class. Common questions for the Class

include, but are not necessarily limited to the following:

a) How Defendant gathered, compiled, or obtained fax numbers of Plaintiff

and the Class;

b) Whether Defendant’s faxes advertised the commercial availability or

quality of property, goods, or services;

c) Whether Defendant sent the fax advertisements without first obtaining

Plaintiff and the Class’s prior express permission or invitation to do so;

and

d) Whether Defendant’s conduct was willful such that Plaintiff and the Class

are entitled to treble damages. 20. Adequate Representation: Plaintiff will fairly and adequately represent and

protect the interests of the Class and has retained counsel competent and experienced in complex

class actions. Plaintiff has no interest antagonistic to those of the Class, and Defendant has no

defenses unique to Plaintiff. 21. Policies Generally Applicable to the Class: This class action is appropriate for

certification because Defendant has acted or refused to act on grounds generally applicable to the

Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible

standards of conduct toward the members of the Class, and making final injunctive relief

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appropriate with respect to the Class as a whole. Defendant’s practices challenged herein apply

to and affect the members of the Class uniformly, and Plaintiff’s challenge of those practices

hinges on Defendant’s conduct with respect to the Class as a whole, not on facts or law

applicable only to Plaintiff. 22. Superiority: This case is also appropriate for class certification because class

proceedings are superior to all other available methods for the fair and efficient adjudication of

this controversy given that joinder of all parties is impracticable. The damages suffered by the

individual members of the Class will likely be relatively small, especially given the burden and

expense of individual prosecution of the complex litigation necessitated by Defendant’s actions. Thus, it would be virtually impossible for the individual members of the Class to obtain effective

relief from Defendant’s misconduct. Even if members of the Class could sustain such individual

litigation, it would still not be preferable to a class action, because individual litigation would

increase the delay and expense to all parties due to the complex legal and factual controversies

presented in this case. By contrast, a class action presents far fewer management difficulties and

provides the benefits of single adjudication, economy of scale, and comprehensive supervision

by a single court. FIRST CAUSE OF ACTION

Violation of 47 U.S.C. § 227

(On Behalf of Plaintiff and the Class)

23. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 24. The TCPA makes it 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). 25. The TCPA defines “unsolicited advertisement” as “any material advertising the

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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). 26. The faxes sent by Defendant advertised the commercial availability and quality of

its goods and services and were commercial in nature. Therefore, Defendant’s faxes are

advertisements under the TCPA. 27. Defendant sent the facsimile advertisements at issue to Plaintiff and members of

the Class without their prior express invitation or consent, and despite the lack of an existing

business relationship between it and members of the Class. 28. By sending the unsolicited advertisement faxes at issue to Plaintiff and members

of the Class without their prior express invitation or permission, Defendant violated 47 U.S.C. §

227(b)(1)(C). 29. As a result of Defendant’s conduct, Plaintiff and the members of the

Class suffered actual damages, including the conversion or loss of paper and toner consumed in

the printing of the faxes, the loss of use of the recipients’ fax machines during the time required

to receive, review and route the unauthorized faxes, as well as increased labor expenses. 30. Plaintiff and the Class are therefore entitled to a minimum of $500 in damages for

each violation under 47 U.S.C. § 227(b)(3)(B). To the extent Defendant’s misconduct is

determined to be willful, the Court should treble the amount of statutory damages under 47

U.S.C. § 227(b)(3). 31. Additionally, as a result of Defendant’s unlawful conduct, Plaintiff and the other

members of the Class are entitled to an injunction under 47 U.S.C. § 227(b)(3)(A), to ensure that

Defendant’s violations of the TCPA do not continue into the future.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff Kenneth A. Thomas MD, LLC, on behalf of itself and the Class, prays for the following relief:

A. An order certifying the Class as defined above, appointing Kenneth A. Thomas

MD, LLC as the representative of the Class, and appointing its counsel as Class Counsel;

B. An order declaring that Defendant’s actions, as set out above, violate the TCPA;

C. An order enjoining Defendant from further TCPA violations, and otherwise

protecting the interests of the Class;

D. An award of statutory damages;

E. An award of pre-judgement interest and costs; and

F. Such further and other relief the Court deems reasonable and just. JURY DEMAND

Plaintiff requests a trial by jury of all claims that can be so tried. Respectfully Submitted, KENNETH A. THOMAS MD, LLC, individually

and on behalf of all others similarly situated, Dated: May 4, 2020

/s/ Juneitha Shambee

Juneitha Shambee, Esq. Shambee Law Office, Ltd. 701 Main St., Ste. 201A

Evanston, IL 60202

(773) 741-3602

juneitha@shambeelaw.com

ARDC: 6308145

Stefan Coleman

law@stefancoleman.com

LAW OFFICES OF STEFAN COLEMAN, P.A.

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201 S. Biscayne Blvd, 28

th Floor

Miami, FL 33131

Telephone: (877) 333-9427

Facsimile: (888) 498-8946

Avi R. Kaufman

kaufman@kaufmanpa.com

KAUFMAN P.A. 400 NW 26

th Street

Miami, FL 33127

Telephone: (305) 469-5881

Attorneys for Plaintif and the putative Class

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