IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

FRED J. DE LA COTERA, D.D.S., 

individually and as the representative of a 

class of similarly-situated persons,

Plaintiff,

v.

NOAH ASSOCIATES INCORPORATED,

 Defendant.

)

)

)

)

)

)

)

)

)

)

Civil Action No.

 

 CLASS ACTION

CLASS ACTION COMPLAINT

Plaintiff, FRED J. DE LA COTERA, D.D.S., (“Plaintiff”), through his attorneys, brings 

this action on behalf of himself and all others similarly situated and, except as to those 

allegations pertaining to Plaintiff or his attorneys, which allegations are based upon personal 

knowledge, alleges the following upon information and belief against Defendant, NOAH

ASSOCIATES INCORPORATED (“Defendant”):

PRELIMINARY STATEMENT

1. This case challenges Defendant’s practice of sending “unsolicited advertisements” 

by facsimile.

2. The federal Telephone Consumer Protection Act of 1991, as amended by the Junk 

Fax Prevention Act of 2005 (“JPFA”), 47 USC § 227 (here after “TCPA” 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 TCPA 

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

3. On or about June 9, 2020 and June 11, 2020, Defendant sent Plaintiff two

unsolicited fax advertisements in violation of the TCPA (“the Faxes”), true and correct copies of 

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 1 of 13 PageID #:1
2

which are attached hereto as Exhibit A and made a part hereof. The Faxes offer offsite clinical 

laboratory testing services. (Exhibit A). 

4. Upon information and belief, Defendant has sent, and continues to send, the Faxes

and other facsimile transmissions of unsolicited advertisements to Plaintiff and the Class in 

violation of the TCPA.

5. Unsolicited faxes damage their recipients. The recipient of an unsolicited fax

(junk fax) 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. Unsolicited faxes

intrude into the recipient’s seclusion, violates the recipient’s right to privacy, occupy fax lines, 

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

faxes, cause undue wear and tear on the recipients’ fax machines, and require additional labor to 

attempt to discern the source and purpose of the unsolicited message. 

6. Plaintiff, on behalf of himself and all others similarly situated, brings this case as 

a class action asserting claims against Defendant under the TCPA. Plaintiff seeks to certify a 

class which were sent the Faxes and other unsolicited fax advertisements that were sent without 

prior express invitation or permission and without compliant opt-out language (to the extent the 

affirmative defense of established business relationship is alleged). Plaintiff seeks statutory 

damages for each violation of the TCPA, injunctive relief, and attorneys’ fees (under the 

conversion count).

7. 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 TCPA. This action seeks relief 

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 2 of 13 PageID #:2
3

expressly authorized by the TCPA: (i) injunctive relief enjoining Defendant, its employees, 

agents, representatives, contractors, and affiliates, and all persons and entities acting in concert 

with them, from sending unsolicited advertisements in violation of the TCPA; and (ii) an award 

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

have such damages trebled, as provided by § 227(b)(3) of the Act in the event willfulness in 

violating the TCPA is shown.

JURISDICTION AND VENUE

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

§ 227.

9. This Court has personal jurisdiction over Defendant because Defendant transacts

business within this judicial district, have made contacts within this judicial district, and/or has 

committed tortious acts within this judicial district.

PARTIES

10. Plaintiff, FRED J. DE LA COTERA, D.D.S., is an Illinois resident.

11. On information and belief, Defendant, NOAH ASSOCIATES INCORPORATED, 

is a Wisconsin corporation with its principal place of business in Milwaukee, Wisconsin.

FACTS

12. On information and belief, Defendant is a for-profit company which provides

offsite clinical laboratory testing services.

13. On or about June 9, 2020 and June 11, 2020, Defendant sent two unsolicited 

facsimiles to Plaintiff using a telephone facsimile machine, computer, or other device. See 

Exhibit A.

14. The June 9, 2020 Fax states in part the following:

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 3 of 13 PageID #:3
4

“Has your clinic moved to TELEMEDICINE? What are you doing for your DRUG TESTING?

Let us perform all the collections for your clinic offsite!

We make it easy as 1-2-3!

1. ORDER YOUR PATEINET’S TEST KIT

2. TELETESTING KIT IS SHIPPED DIRECTLY TO TH EPATIENT

3. RESULTS ARE REPORTED USING OUR SECURE PORTAL...”

15. The June 11, 2020 Fax states in part the following:

“COVID-19 TESTING

Noah Clinical Laboratory is providing Virus and Antibody Testing for COVID-19.

Whether an individual is symptomatic, asymptomatic, or has recovered, our testing options will 

provide insight into their currentCOVID-19 status, enabling informed decisions on how to 

proceed....

There is limited availability to the amount of samples every lab can perform, so don’t delay! 

Reach out to us for details...”

Exhibit A.

16. The Faxes advertise the commercial availability and quality of Noah Associates 

Incorporated’s offsite clinical laboratory testing services. 

17. Plaintiff did not give “prior express invitation or permission” to Defendant to send 

the Faxes.

18. On information and belief, Defendant faxed the same and other unsolicited 

facsimile advertisements without compliant opt-out language to Plaintiff and at least 40 other 

recipients.

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

receiving unauthorized fax advertisements. Fax machines are left on and ready to receive the 

urgent communications their owners desire to receive. 

20. Defendant’s facsimiles attached as Exhibit A do not display a proper opt-out 

notice as required by 47 C.F.R. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4). 

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 4 of 13 PageID #:4
5

CLASS ACTION ALLEGATIONS

21. In accordance with Fed. R. Civ. P. 23(b)(3), Plaintiff brings this class action

pursuant to the TCPA, 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 Defendant, (3) from whom 

Defendant did not obtain “prior express invitation or permission” 

to send fax advertisements, or (4) with whom Defendant did not 

have an established business relationship, and (5) where the fax 

advertisements did not include an opt-out notice compliant with 47 

C.F.R. § 64.1200(a)(4).

Excluded from the Class are Defendant, its officers, directors, shareholders, employees and

agents, and members of the Judiciary. Plaintiff seeks to certify a class which includes but is not 

limited to the fax advertisements sent to Plaintiff. Plaintiff reserves the right to amend the class 

definition upon completion of class certification discovery.

22. 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. The 

precise number of class members and their identities are unknown to Plaintiff but will be 

obtained from Defendant’s records or the records of third parties.

23. 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 Faxes and other faxes sent during the class period constitute 

advertisements under the TCPA and its implementing regulations;

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 5 of 13 PageID #:5
6

(b) Whether Defendant meets the definition of “sender” for direct TCPA 

liability; 

(c) Whether Defendant had prior express invitation or permission to send 

Plaintiff and the class fax advertisements; 

(d) Whether the Faxes and other faxes sent during the class period 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;

(e) Whether Defendant should be enjoined from faxing advertisements in the 

future;

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

statutory damages; and

(g) Whether the Court should award treble damages.

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

all class members. Plaintiff received the same or other faxes as the fax advertisements sent by or 

on behalf of Defendant during the Class Period. Plaintiff is making the same claims and seeking 

the same relief for itself and all class members based upon the same federal statute. Defendant 

has acted in the same or in a similar manner with respect to Plaintiff and all the class members 

by sending Plaintiff and each member of the class the same or other faxes or faxes which did not 

contain the proper opt-out language or were sent without prior express invitation or permission.

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

and adequately represent and protect the interests of the class. Plaintiff is interested in this 

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

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 6 of 13 PageID #:6
7

26. 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 Plaintiff’s claims 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 Defendant

may assert and attempt to prove will come from Defendant’s records and will not require 

individualized or separate inquiries or proceedings;

(c) Defendant has 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:

(i) Defendant identified persons to receive the fax transmissions and it 

is believed that Defendant’s and/or Defendant’s agents’ business records will 

enable Plaintiff to readily identify class members and establish liability and 

damages;

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

with the same common proofs;

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 7 of 13 PageID #:7
8

(iii) Statutory damages are provided for in the statute and are the same 

for all class members and can be calculated in the same or a similar manner;

(iv) A class action will result in an orderly and expeditious 

administration of claims and it will foster economics of time, effort and expense;

(v) A class action will contribute to uniformity of decisions 

concerning Defendant’s practices; and

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

unaddressed absent class certification. 

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

27. Plaintiff brings this case on behalf of himself and a class of similarly-situated 

persons.

28. 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).

29. The TCPA 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).

30. Opt-Out Notice Requirements. The TCPA as amended by 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”):

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 8 of 13 PageID #:8
9

(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 optout gives impetus for recipients to make such a request, if desired;

(2) A statement that the sender must honor a recipient’s opt-out request within 

30 days and the sender’s failure to do so is unlawful – thereby encouraging recipients to 

opt-out, if they did not want future faxes, by advising them that their opt-out requests will 

have legal “teeth”;

(3) A statement advising the recipient that he or she may opt-out with respect 

to all of his or her facsimile telephone numbers and not just the ones that receive a faxed 

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

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

(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, 21 F.C.C.R. 3787, 2006 WL 901720, which rules and regulations took effect on 

August 1, 2006). The requirements of (3) above are contained in § (b)(2)(E) of the Act and 

incorporated into the Opt-Out Notice Requirements via § (b)(2)(D)(ii). Compliance with the OptOut Notice Requirements is neither difficult nor costly. The Opt-Out Notice Requirements are 

important consumer protections bestowed by Congress upon consumers and businesses, giving 

them the right, and means, to stop unwanted fax advertisements. 

31. 2006 FCC Report and Order. The TCPA, in § (b)(2) of the Act, directed the 

FCC to implement regulations regarding the TCPA, including the TCPA’s Opt-Out Notice 

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 9 of 13 PageID #:9
10

Requirements and the FCC did so in its 2006 Report and Order, which in addition provides 

among other things:

A. The definition of, and the requirements for, an established business 

relationship (EBR) 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); and

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).

As a result thereof, a sender of a faxed advertisement who fails to comply with the OptOut Notice Requirements cannot claim the exemption from liability contained in § (b)(C)(1) of 

the Act.

32. The Faxes. On or about June 9, 2020, and June 11, 2020 Defendant sent the 

Faxes 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 

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 10 of 13 PageID #:10
11

Faxes constituted advertisements under the Act and the regulations implementing the Act.

Defendant failed to comply with the Opt-Out Requirements in connection with the Faxes. The 

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

and Defendant is precluded from sustaining the EBR safe harbor with Plaintiff and other 

members of the class, because of the failure to comply with the Opt-Out Notice Requirements.

By virtue thereof, Defendant violated the TCPA 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 these Faxes and all others sent during the four years prior to the 

filing of this case through the present.

33. Defendant’s Other Violations. Plaintiff is informed and believes, and upon such 

information and belief avers, that during the period preceding four years of the filing of this 

Complaint and repeatedly thereafter, Defendant has 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 TCPA and its 

implementing regulations that were transmitted to persons or entities without their prior express 

invitation or permission and without complying with the Opt-Out Notice Requirements. By 

virtue thereof, Defendant violated the TCPA and the regulations promulgated thereunder.

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

may be continuing to send unsolicited advertisements via facsimile transmission in violation of 

the TCPA and the regulations promulgated thereunder, and absent intervention by this Court, 

will do so in the future.

34. The TCPA provides a private right of action to bring this action on behalf of 

Plaintiff and the Plaintiff Class to redress Defendant’s violations of the Act and provides for 

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 11 of 13 PageID #:11
12

statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is 

appropriate. Id.

35. Although the TCPA is a strict liability statute, Defendant is liable to Plaintiff and 

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

36. Defendant knew or should have known that (a) Plaintiff and the other class 

members had not given prior express invitation or permission for Defendant or anybody else to 

fax advertisements promoting goods or services to be bought or sold; (b) Defendant transmitted

advertisements; and (c) the Faxes and other faxes sent by Defendant did not contain the required 

Opt-Out Notice.

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

Receiving Defendant’s junk faxes caused Plaintiff and the other recipients to lose paper and 

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

Plaintiff's and the other class members’ telephone lines and fax machines. Defendant’s faxes cost 

Plaintiff and the other class members time, as Plaintiff and the other class members and their

employees wasted their time receiving, reviewing, and routing Defendant’s unauthorized faxes. 

That time otherwise would have been spent on Plaintiff's and the other class members’ business

or personal activities. Defendant’s faxes intruded into Plaintiff’s and other class members’ 

seclusion and violated their right to privacy, including their interests in being left alone. Finally, 

the injury and property damage sustained by Plaintiff and the other class members from the 

sending of Defendant’s advertisements occurred outside of Defendant’s premises.

WHEREFORE, Plaintiff, FRED J. DE LA COTERA, D.D.S., individually and on behalf 

of all others similarly situated, demands judgment in his favor and against Defendant, NOAH 

ASSOCIATES INCORPORATED, as follows:

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 12 of 13 PageID #:12
13

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 actual monetary loss from such violations or the sum of five 

hundred dollars ($500.00) for each violation, whichever is greater, and that the Court award 

treble damages of $1,500.00 if the violations are deemed “willful or knowing”;

C. That Court enjoin Defendant from additional violations; and

D. That the Court award pre-judgment interest, costs, and such further relief as the 

Court may deem just and proper.

Respectfully submitted,

FRED J. DE LA COTERA, D.D.S., individually 

and as the representative of a class of similarlysituated persons

By: /s/ Ryan M. Kelly

Ryan M. Kelly

ANDERSON + WANCA

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

Telephone: 847-368-1500

Fax: 847-368-1501

rkelly@andersonwanca.com

Case: 1:20-cv-05036 Document #: 1 Filed: 08/27/20 Page 13 of 13 PageID #:13