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United States District Court,

N.D. Illinois,

Eastern Division.

CREATIVE MONTESSORI LEARNING CENTER, Plaintiff,

v.

ASHFORD GEAR, LLC, Defendant.

No. 09 C 3963.

Sept. 10, 2012.

Brian J. Wanca, Ryan M. Kelly, Anderson &

Wanca, Rolling Meadows, IL, Daniel J. Cohen,

James Michael Smith, Jonathan B. Piper, Phillip A.

Bock, Tod Allen Lewis, Bock & Hatch, LLC

Chicago, IL, for Plaintiff.

Eric L. Samore, Erin Anne Walsh, Molly Anne Arranz, Smith Amundsen, LLC, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

*1 Plaintiff Creative Montessori Learning Center brought a putative class action complaint against

defendant Ashford Gear, LLC alleging violations of

the Telephone Consumer Protection Act (“TCPA”),

42 U .S.C. § 227, and conversion. Both counts are

premised on the allegations that defendant sent, or

authorized the sending, of an unsolicited facsimile

advertisement to plaintiff.

On July 27, 2011, this court, after applying the

requirements of Fed.R.Civ.P. 23, certified a class

defined as:

All persons having no established business relationship with Ashford Gear, LLC who were sent

one or more unsolicited faxes in June 2006 regarding the “Rollee Pollee” self-contained napping station, offering “order 30 Rollee Pollees by

June 30, 2006 and get 6 FREE!, and identifying

(718) 360–0971 as the number to call to stop receiving faxes. ( Creative Montessori Learning

Center v. Ashford Gear, 2011 WL 3273078 *10

(N.D.Ill.2011))

Defendant sought leave to appeal to the Seventh Circuit under Fed.R.Civ.P. 23(f), arguing that

the manner by which class counsel obtained their

client constituted sufficient misconduct as to

demonstrate that counsel was inadequate to represent the class. Despite receiving no response from

plaintiff to the Rule 23(f) petition, and apparently

accepting defendant's factual statements as true, the

Seventh Circuit determined: (1) that this court applied the wrong legal standard to class counsels' potential misconduct; and (2) that there was reason to

doubt that class counsel will “fairly and adequately” represent the entire class. The Seventh

Circuit vacated the class certification and remanded

the case to this court with directions to apply the

standard used in Culver v. City of Milwaukee, 277

F.3d 908, 913 (7th Cir.2000), and determine whether any misconduct by class counsel created a serious doubt that counsel would represent the class

loyally. Creative Montessori v. Ashford Gear, LLC,

662 F.3d 913, 918–19 (7th Cir.2011).

On remand, plaintiff filed a supplemental motion for class certification which the parties have

briefed extensively, focusing entirely on whether

class counsel is adequate to represent the class.

Having reviewed the hundreds of pages of supplemental submissions, including expert declarations

and opinions, for the reasons discussed below, the

court concludes that there is no evidence to suggest

that counsel will not loyally represent the class, and

no evidence to suggest in any way that counsel will

put their own interests ahead of those of the class.

Plaintiff's supplemental motion is granted.

As the Seventh Circuit noted, this case is one

of more than 50 similar class action suits filed by

class counsel, all based on information counsel rePage 1

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ceived through the discovery process in CE Design

Ltd. v. Cy's Crabhouse North Inc., 2010 WL

3327876 (N.D.Ill.2010). As discussed in this court's

previous opinion, class counsel obtained an electronic data base from Back 2 Business (“B2B”)

FN1 that contained contact information for intended targets of fax advertisements. Plaintiff's name

was on that list.

FN1. B2B is the fax broadcasting company

that defendant hired to conduct a fax

broadcasting campaign on its behalf.

*2 The alleged misconduct asserted in the instant case is the manner by which class counsel obtained that list, and the manner by which counsel.

According to defendant, class counsel breached a

promise of confidentiality made by them to Caroline Abraham, owner of B2B. In Cy's Crabhouse,

Judge Kennelly ultimately determined, however,

that there was no reason to keep the B2B materials

confidential. Cy's Crabhouse, 2010 WL 3327876 at

*3.

In its initial opinion, this court assumed that

class counsel had violated an agreement with Abraham, but concluded that the violation was not sufficient to cast doubt on counsel's adequacy. The evidence submitted in support of the supplemental motion proves, however, that counsel breached no

such agreement. The record demonstrates that while

attempting to obtain materials informally from Abraham, counsel agreed to keep confidential any information provided. But Abraham refused to

provide any information informally, forcing counsel to invoke the discovery process by issuing subpoenas in Cy's Crabhouse and other pending cases.

Indeed, the lists were never produced by Abraham,

but by her adult son Joel Abraham and his lawyer,

Eric Ruben, pursuant to subpoenas. Ruben has admitted that he turned over the records without attempting to assert any claim of confidentiality.

Thus, it appears that class counsel did not violate

any confidentially order of a court, or any informal

agreement with Abraham.

It should be noted that Abraham was not seeking confidentiality to protect her business, her clients, or even recipients such as plaintiff. She was

simply trying to protect herself from further lawsuits. B2B, which had already been the subject of

three FCC citations for TCPA violations, had been

out of business for over a year. Indeed, the State of

Indiana already had a $216,488 judgment against

Abraham and her husband Jason for violations of

Indiana's Anti–Junk Faxing Statute. Thus, any suggestion that Abraham sought confidentiality to protect anyone but herself is pure sophistry, as is the

notion that the B2B records were produced with an

“understanding” of confidentiality.

In any event, this court agrees with the court in

Reliable Money Order Inc. v. McNight Sales Company, Inc., 281 F.R.D. 327 (E.D.Wis.2012), another

case brought by class counsel based on information

obtained from the B2B records, that:

Whatever this court's opinion of counsel's behavior might be, such behavior does not create a serious doubt that class counsel will represent the

class loyally. The plaintiffs' attorneys did not

breach a promise of confidentiality with the

members of the class in Cy's Crabhouse, with the

members of the class in Ashford Gear, or with the

potential members of this class. Instead the

breach was with a third party holding information

regarding the illegal behavior of potential defendants.

At least four district courts have analyzed class

counsel's adequacy after the Seventh Circuit decision remanding the instant case. None of those

have found any reason to doubt counsels' loyalty to

their class, despite their methods of obtaining

plaintiffs' names. See Reliable Money Order, 281

F.R.D. 327; Jacksons' Five Star Catering, Inc. v.

Beason, 2012 WL 3205526 (E.D.Mich. July 26,

2012); American Copper & Brass, Inc. v. Lake City

Industrial Products, Inc., 2012 WL 3027953

(W.D.Mich. July 24, 2012); Imhoff Inv. LLC v.

SamMichaels, Inc., 2012 WL 2036765, *3–4

(E.D.Mich. May 21, 2012). This court agrees with

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the decisions in those cases. Despite the abundance

of information presented by defendants, nothing

suggests to this court that class counsel will do anything but zealously represent the class, as they have

in other TCPA cases before this court. See Holtzman v. Turza, 2011 WL 3876943 (N.D.Ill. Aug.29,

2011).

*3 Thus, the court concludes that nothing about

the manner by which class counsel received the

B2B records creates “a serious doubt that class

counsel will represent the class loyally.”

The court reaches the same conclusion with respect to the solicitation letter class counsel sent to

plaintiff. At the August 4, 2011, hearing, the court

found that both the letter and the envelop contained

the words “Advertising Material” as required by

Rule 7.3(c) of the ABA Model Rules of Professional Conduct and L.R. 83.50. The court also determined that class counsel had no contact with plaintiff

prior to plaintiff's receipt of the solicitation letter.

The court then noted that the letter, which stated

that counsel's law firm “litigates class action lawsuits against companies which send junk faxes,”

and “[d]uring our investigation, we have determined that you are likely to be a member of the

class,” probably violated Rule 7.1 as misleading,

but that the violation was not so egregious as to

convince the court to deny class certification.

On remand, class counsel vigorously disputes

that “taken as a whole” as required by the Rule, the

letter is misleading. To support their position, counsel has submitted the opinion of a “nationally

renowned ethicist,” Professor Richard Painter, who

concludes that the letter did not violate the Rule.

Defendant, of course, challenges the admissibility

of Painter's opinion as devoid of any analytical

framework and for failing to apply an objective test

or to view the communication from the prospective

of a “hypothetical unsophisticated consumer.”

This court is fully capable of determining on its

own whether the plain language of the letter is misleading. With all due respect to Professor Painter,

the court continues to conclude that the letter, considered as a whole, is misleading because it suggests that plaintiff is a member of an existing class,

when no such class had yet been certified. The

court also continues to conclude, however, that the

misrepresentation in the letter is not so significant

as to cast serious doubt on counsels' ability to represent the class loyally. Thus, the court finds that

nothing about the manner by which counsel solicited plaintiff renders counsel inadequate to represent the class.

Accordingly, for the reasons stated above,

plaintiff's supplemental motion to certify the class

is granted. This matter is set for a report on status

on September 19, 2012 at 9:00 a.m.

N.D.Ill.,2012.

Creative Montessori Learning Center v. Ashford

Gear, LLC

Slip Copy, 2012 WL 3961307 (N.D.Ill.)

END OF DOCUMENT

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