IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

 

CITY SELECT AUTO SALES, INC., 

 Plaintiff, 

 v. 

DAVID RANDALL ASSOCIATES, 

INC., et al., 

 Defendants. 

Civil Action 

No. 11-2658 (JBS-KMW) 

OPINION

APPEARANCES: 

Alan C. Milstein, Esq. 

Sherman, Silverstein, Kohl, Rose & Podolsky, PC 

Eastgate Corporate Center 

30 Harper Drive 

Suite 200 

Moorestown, NJ 08057 

 -andTod Lewis, Esq. 

Jonathan Piper, Esq. 

Bock & Hatch, LLC 

134 N. La Salle St., Ste. 1000 

Chicago, IL 60602 

 Attorneys for Plaintiff City Select Auto Sales, Inc. 

F. Emmett Fitzpatrick, III, Esq. 

Flamm Boroff & Bacine PC 

794 Penllyn Pike 

Blue Bell, PA 19422 

Attorney for Defendants and Third Party Plaintiffs David 

Randall Associates, Inc. and Raymond Miley, III 

SIMANDLE, Chief Judge: 

TABLE OF CONTENTS 

I. INTRODUCTION.............................................. 2

II. BACKGROUND................................................ 3

A. David Randall’s Advertising Campaign .................... 3

B. The Named Plaintiff ..................................... 4
2 

C. Plaintiff’s Counsel’s Behavior .......................... 7

D. Prior Litigation Against David Randall ................. 11

E. Procedural History ..................................... 12

III. CLASS CERTIFICATION MOTION............................... 15

A. Parties’ Arguments ..................................... 15

B. Article III Standing ................................... 18

C. Discovery Issues ....................................... 23

D. Federal Class Certification Law Governs ................ 26

E. Class Certification Standard ........................... 30

F. Plaintiff’s Class Certification Motion Will be Granted . 31

1. Satisfaction of F.R.C.P. 23 ........................... 31

2. Suitability of Class Representative ................... 38

3. Admissibility of Hard Drive Evidence .................. 44

4. Suitability of Class Counsel .......................... 45

5. Proposed Class Definition ............................. 56

6. Settlement Pressure ................................... 60

7. Common Questions of Law and Fact ...................... 61

8. Requirement of Notice to Class ........................ 61

IV. CONCLUSION............................................... 62

I. INTRODUCTION 

This action is a putative class action brought under the 

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, on 

behalf of persons who received unsolicited fax advertisements 

from Defendant David Randall Associates, Inc. (“David Randall”) 

and its owner Defendant Raymond Miley, III, (hereafter 

“Defendants”) in the spring of 2006. The TCPA imposes on anyone 

who sends an unsolicited fax advertisement statutory damages of 
3 

$500 per fax, which can be trebled if the violation was willful 

or knowing. 47 U.S.C. § 227(b)(1)(C), (b)(3)(B). 

Before the Court is the renewed motion for class 

certification pursuant to Rule 23(b)(3), Fed. R. Civ. P., by 

Plaintiff City Select Auto Sales, Inc. (“City Select”) [Docket 

Item 60], which incorporates Plaintiff’s original motion for 

class certification [Docket Item 30]. The principal issues are 

whether Plaintiff’s counsel has behaved unethically such that 

they are inadequate class counsel and whether Plaintiff is an 

adequate class representative. The Court holds that Plaintiff’s 

counsel will represent the class loyally and Plaintiff is an 

adequate representative. Plaintiff’s motion will be granted.1

II. BACKGROUND 

A. David Randall’s Advertising Campaign 

Defendant David Randall, which is owned by Defendant 

Raymond Miley III, is a Pennsylvania-based commercial roofing 

contractor. David Randall contracted with Business to Business 

Solutions (“B2B”), a fax advertising company, to send 

advertisements on rainy days to persons and entities located in 

zip codes within a specific geographic area. B2B was owned by 

Caroline Abraham and was operated by Caroline Abraham and her 

 

1

 Both parties filed motions for leave to cite supplemental 

authority [Docket Items 86 & 92], which will be granted. 
4 

son, Joel Abraham, who are not named as direct defendants. 

Defendants did not contact the prospective recipients to request 

permission to send advertisements. On March 29, April 4, April 

13, April 14, May 15, and May 16, 2006, B2B sent fax 

advertisements on Defendants’ behalf. (Pl. 1st Class 

Certification Br. (“Pl. 1st Br.”) at 1.) The advertisements 

described David Randall Associates, provided its phone number, 

and stated “Roof Leaks??? Repairs Available.” [Docket Item 30-3 

at 15.] 

Plaintiff’s expert witness examined a B2B hard drive 

furnished to Plaintiff’s counsel by the Abrahams (discussed 

further below) and found that Defendants’ advertisements were 

successfully sent 44,382 times to 29,113 unique fax numbers. 

(Pl. 1st Br. at 8.) 

B. The Named Plaintiff 

According to B2B’s records, Plaintiff received faxes from 

David Randall on April 4 and May 15, 2006. (Pl. 1st Br. at 8.) 

City Select’s President Louis L. Pellegrini has a “pet 

peeve[]” against junk faxes. (Pellegrini Dep. [Docket Item 82-7] 

Feb. 28, 2013, 31:8.) He testified, “People that faxed me with – 

with transmissions that have nothing to do with me I resent 

because it costs me money in toner and paper . . . .” (Id. 
5 

50:12-15.) He also believes that junk faxes “effectively stole 

City Select Auto Sales’ employees’ times.” (Id. 100:25-101:2.) 

He had an arrangement with an attorney named Brian Wanca 

whereby Pellegrini would collect junk faxes “until the pile gets 

relatively large, and I can scan them and send them to Mr. 

Wanca.” (Id. 50:17-19.) Pellegrini explained, “I get large 

numbers of faxes that . . . I never requested or have any 

business with, and Mr. Wanca told me that I should give them to 

him and he might bring lawsuits against those people . . . .” 

(Id. 30:4-6.) 

He does not have any emails containing junk faxes that he 

sent Wanca because “every six months or so, whenever I get an 

email from my server that says I’m at 99.5% of capacity for 

emails, I go into my email and I delete all the sents as well as 

all those that just are ones that come to me . . . .” (Id. 

51:17-22.) 

He does not presently have any information about, 

recollection of, or record of the faxes that he received from 

David Randall in 2006. 

Pellegrini testified that he had purchased the fax machine 

that City Select used in 2006 and that City Select’s current fax 

number was the same in 2006. (Pellegrini Dep. 81:23-85:14.) 
6 

At his deposition, Pellegrini expressed some confusion 

about the different attorneys with whom he had worked. He had 

communicated with Wanca; Jonathan Piper, who represented him at 

his deposition; and an attorney named Tod, who works with Piper. 

When asked at his deposition, “Who represents you?” He 

responded, “I haven’t a clue. Mr. Pippen [sic] does.” (Id. 

56:14-16.) He did not recall whether he had signed a fee 

agreement with his attorneys, but he was certain that “I would 

not have agreed to pay an hourly rate, which I feel could get 

expensive, that I would have only agreed to a contingency 

basis.” (Id. 64:22-25.) He was also uncertain about whether he 

had retained Wanca, stating, “I don’t know the difference 

between agreeing to send faxes in which he would bring a lawsuit 

against people who sent you unlawful faxes and whether I 

retained Mr. Wanca. I don’t know the difference between that.” 

(Id. 95:21-96:2.) He also said, “I said that I had agreed to do 

business with Mr. Wanca. If that means that I retained counsel, 

then I guess I did.” (Id. 98:5-7.) 

Pellegrini did not recall reading the Complaint but, when 

presented with the document, said “this has the look of what I 

would have stored on my file.” (Id. 73:21-23.) He said, “even if 

I had received this document, I would have read the first part 

here, the first page that says that I’m suing the guy for the 
7 

faxes, and I wouldn’t have gotten past the first page” because 

“it’s a waste of my time.” (Id. 73:24-74:9.) 

He did not recall, at his deposition, whether he had 

discussed other class members with anyone before the Complaint 

was filed. He had never discussed City Select’s role in the 

litigation. He did not know how much remuneration City Select 

might receive from the litigation. He also did not know how much 

remuneration his attorneys might receive. 

C. Plaintiff’s Counsel’s Behavior 

This action is based on a B2B hard drive cataloguing fax 

advertisement campaigns that B2B conducted on behalf of clients, 

including David Randall. Ryan Kelly, an attorney from the 

Illinois firm Anderson & Wanca, obtained the hard drive. Kelly, 

Brian Wanca, and other Anderson & Wanca attorneys wanted to 

obtain the hard drive to retrieve the data themselves at their 

own expense. (Wanca Dep. 158:13-24.) In support of its class 

certification motion, Plaintiff submitted an affidavit from 

Caroline Abraham, B2B’s owner and operator, dated December 28, 

2010, describing B2B’s operations and her son Joel’s production 

of the hard drive. [Docket Item 30-5.] 

Defendants assert that Kelly promised Caroline Abraham that 

he would keep the hard drive contents confidential and that he 
8 

would ensure Abraham would not be sued.2 Plaintiff argues that 

Kelly obtained the hard drive from Caroline Abraham’s son Joel 

Abraham and that Joel Abraham produced the hard drive at a 

deposition, pursuant to a subpoena, while represented by an 

attorney, and without any confidentiality promise. 

Brian Wanca testified that Caroline Abraham “advised 

[Anderson & Wanca] that she wanted to be paid for her time to 

meet with us, or to sit for deposition, or to produce records . 

. . .” (Wanca Dep. (Docket Item 82-8) 109:13-16.) For example, 

on August 4, 2008, she stated, “[w]e would greatly appreciate a 

very modest payment of $1,250 for our services.” (Def. 1st Opp’n 

Ex. J.) Brian Wanca wrote many checks to Carolina Abraham for 

witness fees, mileage, and transportation costs. (Wanca Dep. 

114-117.) By August 2009, Anderson & Wanca had paid the 

Abrahams over $3,500 for their time and expenses in responding 

to multiple requests for information. (Pl. 2nd Class 

Certification Br. at 13.) 

 

2

 In support of this assertion, Defendants cite an email from 

David Paul, an attorney at Leader & Berkon, regarding a 

different case involving the B2B hard drive data in which Paul 

told Abraham, “One of the other parties . . . tried to include 

you as a defendant in that action. We challenged that motion and 

. . . we successfully defeated it. As a result, you are not sued 

in that case, nor will you ever be.” (Def. 1st Opp’n Ex. L.) 

Defendants allege that Paul and Kelly were working together. 
9 

Ryan Kelly told Brian Wanca that the Abrahams were 

requesting $5,000 to compensate them for their time and 

expenses. (Wanca Dep. 184:20-185:22.) Brian Wanca wrote a $5,000 

check to Abraham’s attorney Eric Rubin on August 10, 2009. (Def. 

1st Opp’n Ex. I.) In the memo line, the check states, “document 

retrieval.” (Id.) Wanca anticipated that Joel Abraham and 

Caroline Abraham would spend a considerable amount of time in 

the future responding to document requests and sitting for sworn 

statements/depositions. (Wanca Dep. 180:4-11.) Wanca calculated 

the $5,000 figure because “[a]t that time, there was more than 

10 cases and less than 50 cases that we had – or in the process 

– of filing in which the Abrahams were the facts [sic] 

broadcaster. Between document retrieval, . . . Joel and Carol 

sitting for deposition, there were a large number of cases . . . 

.” (Wanca Dep. 180:17-181:10.) Wanca “believe[d] the $5,000 

figure to encompass $100 to retrieve documents and $100 for each 

of them to sit for upcoming depositions, that Mr. Rubin would 

put it in his trust account and pay . . . it out . . . since 

other checks . . . had gone through Rubin in the past.” (Wanca 

Dep. 183:8-21.) 

At that time, Wanca was leaving for a family vacation with 

his family to the Carolinas. (Wanca Dep. 190:3-14.) They stayed 

in a Ramada Inn, (Wanca Dep. 191:9-10), and Wanca mailed the 
10 

check to Rubin in a Ramada envelope, (Def. 1st Opp’n Ex. I). 

Wanca “normally” takes blank checks with him when he travels “in 

case the firm needs checks cut while – while I’m away.” (Wanca 

Dep. 190:24-191:4.) 

Rubin voided the check and wrote a letter to Mr. Wanca 

stating that Caroline Abraham was unwilling to accept funds from 

Wanca’s firm. Rubin stated, “I regard this attempt to pay my 

client for their cooperation in providing you with information 

or documents identifying third parties that may have sent fax 

transmissions through Business to Business at the very least, to 

be of questionable propriety.” (Def. Opp’n Ex. I.) When he 

received Rubin’s letter, Wanca faxed Rubin a note apologizing 

for the misunderstanding. (Wanca Dep. 196:13-197:18.) Wanca 

testified that he had “understood that there was an agreement 

whereby [Rubin] would receive $5,000 and then disburse it as 

needed in – in the cases that we – that we had some discussions 

with him about. Apparently, him and Mr. Kelly did not reach the 

specifics of the discussion . . . .” (Wanca Dep. 198:9-18.) 

Wanca testified that “[n]o complaints have been brought 

against me or Mr. Kelly in any jurisdiction . . . .” (Wanca Dep. 

217:19-21.) 

On December 5, 2009, Wanca sent a letter to City Select 

Auto Sales soliciting its participation in junk fax litigation. 
11 

The letter stated, “My law firm pursues class action lawsuits 

against companies that send junk faxes . . . we have determined 

that you are likely to be a class member in one or more cases 

that we are pursuing. You might not remember receiving the junk 

faxes, but if the lawsuit were successful, you would receive 

compensation (from $500 up to $1,500) for each junk fax sent to 

you.” [Docket Item 36-1 at 70.] The bottom of the letter stated, 

“Advertising Material.” [Id.] 

D. Prior Litigation Against David Randall 

Anderson & Wanca, often working in coordination with other 

law firms, filed “more than 50 similar class action suits based 

on information from Abraham's records concerning firms that used 

her faxing services and the recipients of the faxes.” Creative 

Montessori Learning Centers v. Ashford Gear LLC, 662 F.3d 913, 

916-17 (7th Cir. 2011). 

In one such case, plaintiff G. Winter’s Sailing Center, 

Inc. (“Winter’s”) filed suit against David Randall in New Jersey 

Superior Court complaining of the same faxes underlying this 

action. 

Kelly had sent Winter’s a letter stating, “You might not 

remember receiving the junk faxes, but if the lawsuit were 

successful, you would receive compensation (from $500 up to 

$1,500) for each junk fax . . . .” [Docket Item 31-2 at 13.] In 
12 

a subsequent email to Winter’s, Kelly wrote, “Your company 

received the attached three junk faxes. Please sign and return 

the Retainer Agreements . . . .” [Docket Item 31-2 at 16.] 

In the Winter’s litigation, Alan Milstein, who was 

plaintiff’s counsel in that action and is Plaintiff’s counsel in 

the present action, filed a motion to admit Kelly as pro hac 

vice co-counsel. Defendants argued that motion was an attempt to 

insulate Kelly from a deposition. The Winter’s court denied the 

pro hac vice motion and permitted Defendants’ counsel to depose 

Kelly. After Defendants’ counsel obtained a subpoena to depose 

Kelly, Winter’s “abruptly accepted a $1,500 judgment . . . .” 

(Def. 1st Opp’n at 3.) The Winter’s action against David Randall 

closed. No class had been certified, and the settlement was only 

on Winter’s behalf. 

Plaintiff’s attorneys then filed the present action on 

behalf of City Select individually and as the representative of 

a class of similarly situated persons. 

E. Procedural History 

Defendants filed a motion to dismiss [Docket Item 8], which 

the Court denied [Docket Items 17 & 18]. The Court’s principal 

holdings were that “during at least the first fourteen months of 

the [Winter’s] Superior Court action, . . . claims on behalf of 

unnamed alleged recipients of the unsolicited fax were tolled,” 
13 

the statute of limitations did not bar the present action, and 

the entire controversy doctrine was inapplicable. City Select 

Auto Sales, Inc. v. David Randall Associates, Inc., Civ. 11-2658 

(JBS/KMW), 2012 WL 426267, at *5 (D.N.J. Feb. 7, 2012). 

Defendants filed a Third Party Complaint against Caroline 

Abraham and Joel Abraham. [Docket Item 23.] The Abrahams never 

appeared, and Defendants filed a motion for default, [Docket 

Item 42]. Plaintiff filed a response [Docket Item 43] opposing 

entry of default. The Court granted the motion and the Clerk 

entered default against the Abrahams. [Docket Item 53.]

The Court heard oral argument on Plaintiff’s first motion 

for class certification [Docket Item 30] and determined that the 

parties needed to conduct limited discovery and submit 

additional briefing. The Court issued an order [Docket Item 53] 

dismissing Plaintiff’s first motion for class certification 

without prejudice. The Court permitted Plaintiff to file a 

renewed class certification motion and instructed Defendant to 

file its response within 60 days thereafter, thus allowing time 

for reasonable discovery, including depositions of Brian Wanca 

and Ryan Kelly, the attorneys who obtained the B2B hard drive, 

and Caroline Abraham, B2B’s owner. 

The Court also instructed the parties to brief the impact 

of 47 U.S.C. § 227(b)(3), which states that “[a] person or 
14 

entity may, if otherwise permitted by the laws or rules of court 

of a State, bring in an appropriate court of that State” TCPA 

actions. At oral argument on Plaintiff’s first class 

certification motion, Defendant asserted that New Jersey law 

applied and precluded class certification. 

During a teleconference regarding a discovery dispute, 

Plaintiff noted that the district court in Bais Yaakov of Spring 

Valley v. Peterson's Nelnet, LLC, Civ. No. 11-00011, 2013 WL 

663301 (D.N.J. Feb. 21, 2013), had certified an interlocutory 

appeal regarding the impact of 47 U.S.C. § 227(b)(3). Both 

parties requested an indefinite stay pending the Third Circuit’s 

resolution, and the Court stayed [Docket Item 72] the case. 

Plaintiff later filed a notice [Docket Item 73] that the Third 

Circuit declined to certify the interlocutory appeal. This Court 

issued an Order [Docket Item 74] lifting the stay and 

reactivating Plaintiff’s motion for class certification. 

Defendants filed a motion to compel the depositions of 

third-party Defendants Caroline Abraham and Joel Abraham. 

Magistrate Judge Karen M. Williams issued an Order noting that 

“Defendants’ counsel unjustifiably refused to cooperate with 

third-party Defendants to find a mutually convenient time and 

place for their depositions.” [Docket Item 84 at 4.] Magistrate 

Judge Williams granted in part and denied in part Defendants’ 
15 

motion, holding that “third-party Defendant Caroline Abraham 

shall be deposed on a mutually agreed upon Sunday in Brooklyn, 

New York on or before September 30, 2013” and “that insofar as 

Defendants’ counsel properly serves Joel Abraham with a 

deposition notice, he shall likewise be deposed in Brooklyn, New 

York . . . .” [Id. at 5.] In the end, Defendants’ counsel did 

not depose either Caroline or Joel Abraham despite having the 

opportunity to do so. 

The Court heard oral argument on Plaintiff’s renewed motion 

for class certification on October 23, 2013. At this oral 

argument, the Court ordered Plaintiff to submit a copy of the 

retainer agreement, which was submitted via letter [Docket Item 

88]. Defendant then filed three letters in response [Docket 

Items 89, 90, & 91], all of which have been considered. 

III. CLASS CERTIFICATION MOTION 

A. Parties’ Arguments 

Plaintiff argues that federal class certification law 

governs. Plaintiff seeks to certify its TCPA claim under Fed. R. 

Civ. P. 23(b)(3) on behalf of the following class: 

All persons who were successfully sent one or more 

faxes during the period March 29, 2006, through May 

16, 2006, stating, “ROOF LEAKS??? REPAIRS AVAILABLE 

Just give us a call and let our professional service 

technicians make the repairs!” and “CALL: 

David/Randall Associates, Inc. TODAY.” 

(Pl. 1st Class Cert. Mot. at 1.) 
16 

Plaintiff identifies five common questions: (1) whether 

Defendants’ fax constitutes an advertisement, (2) whether 

Defendants violated the TCPA by sending the advertisements 

without permission, (3) whether Plaintiff and other class 

members are entitled to statutory damages, (4) whether 

Defendants’ actions were willful and knowing under the TCPA and, 

if so, whether the Court should treble the statutory damages, 

and (5) whether the Court should enjoin Defendants from future 

TCPA violations. (Pl. 1st Br. at 13.) 

Plaintiff asserts that all class members have common 

evidence, i.e., the B2B hard drive. Plaintiff argues that City 

Select is an adequate representative and that its attorneys are 

adequate class counsel. 

Defendants argue that Ryan Kelly, Brian Wanca, and 

Plaintiff’s counsel unethically obtained the hard drive from B2B 

by offering payment and free legal services, by falsely assuring 

the Abrahams that they would not be subject to legal processes, 

and by falsely promising confidentiality. Defendants argue that 

Plaintiff’s counsel’s efforts to defend the Abrahams from legal 

action are contrary to the interests of the proposed class. 

Defendants also argue that the affidavits and declarations that 

Plaintiff proffers to admit the hard drive evidence are invalid. 
17 

They assert that Brian Wanca unethically solicited Winter’s and 

City Select to participate in litigation. 

Defendants claim that Plaintiff’s retainer agreement shows 

that Plaintiff’s counsel are violating the Rules of Professional 

Conduct because the attorneys who signed the retainer agreement, 

Brian Wanca and Phillip Bock, are not licensed to practice law 

in New Jersey and are not admitted pro hac vice. In addition, 

the fee agreement contains a provision in which the client 

agrees not to oppose the attorneys’ effort to seek 1/3 of any 

award, if the action succeeds, and Defendants argue that this 

provision is improper. 

Defendants also argue that Plaintiff’s counsel’s responses 

to discovery questions in the Winter’s litigation were false and 

unethical and that Wanca and Kelly wrongfully claimed attorneyclient privilege in response to certain questions at their 

depositions. 

Defendants claim that City Select is an inadequate named 

Plaintiff because its President and representative, Louis 

Pellegrini, was unaware of many aspects of this litigation 

process and could not recall receiving the faxes from David 

Randall. 
18 

Defendants also argue that the TCPA only permits class 

certification if state laws permit it, and New Jersey law 

prohibits class certification in TCPA cases. 

Finally, Defendants challenge Plaintiff’s proposed class 

definition because it does not specify that the fax 

transmissions must have been unsolicited and received and does 

not exclude recipients who had an established business 

relationship with David Randall. 

B. Article III Standing 

At the threshold, the Court addresses Defendants’ argument 

that City Select lacks standing because its representative, 

Pellegrini, does not recall receiving the fax advertisements. 

“Article III standing is a necessary prerequisite to class 

certification.” P.V. ex rel. Valentin v. Sch. Dist. of 

Philadelphia, 289 F.R.D. 227, 231 (E.D. Pa. 2013). “Named 

plaintiffs must have case or controversy standing.” In re 

Flonase Antitrust Litig., 692 F. Supp. 2d 524, 534 (E.D. Pa. 

2010). The three “irreducible” constitutional elements of 

standing are: (1) an injury in fact that is actual, not 

“conjectural” or “hypothetical”; (2) a causal connection between 

the injury and the conduct complained of; and (3) a showing that 

it is likely that a favorable decision will redress the injury. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). 
19 

Only the first element is disputed here. Defendants cite 

Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, Civ. 12-80178, 2013 

WL 5972173 (S.D. Fla. Oct. 22, 2013), in which the district 

court granted summary judgment to the defendant because, inter 

alia, the plaintiff lacked Article III standing. Palm Beach Golf 

also involved B2B fax transmissions although the defendant had 

hired an independent marketing contractor who retained B2B 

without the defendant’s knowledge. The plaintiff, Palm Beach 

Golf, did not know it had received a fax from the defendant’s 

company and did not know the fax’s contents. The Palm Beach Golf 

court held that “only a recipient could suffer the injury the 

TCPA was intended to address” and that “Congress conferred a 

private remedy upon the injured recipients of a fax 

advertisement.” Id. at *12 (emphasis in original). The Palm 

Beach Golf court further explained that “[i]f a plaintiff does 

not see, know about, or otherwise become aware of an unsolicited 

fax advertisement, it is difficult to conceive how the 

plaintiff's right to privacy could be invaded by the fax 

advertisement such that the plaintiff is injured in fact.” Id. 

at *13. In addition, Palm Beach Golf found that “[t]here is also 

no evidence that the fax ever printed, tied up Plaintiff's 

dedicated fax line, or caused any other possible injury. Any 

claim by Plaintiff that such an injury could have occurred is 
20 

merely hypothetical, which is insufficient to withstand the 

standing inquiry.” Id. at *13. 

Palm Beach Golf does not bind this Court and the Court is 

not persuaded by its reasoning. Plaintiff has produced evidence 

that the fax advertisements were successfully sent, and the B2B 

evidence is sufficient for standing purposes. The TCPA “does not 

specifically require proof of receipt.” CE Design Ltd. v. Cy's 

Crabhouse N., Inc., 259 F.R.D. 135, 142 (N.D. Ill. 2009). 

Plaintiff “has provided circumstantial proof of receipt by all 

of the numbers to which the fax logs indicate faxes were 

successfully sent on behalf of [David Randall]. That is 

sufficient . . . .” Id. at 142; see also Hinman v. M & M Rental 

Ctr., Inc., 596 F. Supp. 2d 1152, 1159 (N.D. Ill. 2009) (“On its 

face, the statute prohibit[s] the sending of unsolicited fax 

advertisements and make[s] no reference at all to receipt, much 

less to printing”). In addition, “[e]ven assuming the TCPA 

requires proof of receipt as opposed to merely transmission, 

Defendants fail to support the argument that a plaintiff may 

only establish receipt by producing the actual fax itself. 

Indeed, Plaintiff has produced circumstantial evidence of 

receipt through the fax logs.” Savanna Grp., Inc. v. Trynex, 

Inc., Civ. 10-7995, 2013 WL 66181, at *5 (N.D. Ill. Jan. 4, 

2013). 
21 

Moreover, Plaintiff’s expert’s report describes the five 

phases of fax transmission and explains that “[b]ecause a record 

of a successful transmission . . . reflects the successful 

completion of all 5 phases . . ., a record of a successful 

transmission . . . is a record that such transmission was sent 

to and received by ‘equipment which has the capacity to 

transcribe text or images (or both) from an electronic signal 

received over a telephone line onto paper.’” (Biggerstaff Expert 

Report (Docket Item 30-4) ¶ 35.) Even if a fax was not actually 

printed, the Biggerstaff report shows that a successfully sent 

fax message was received by the recipient’s machine. The B2B 

records from David Randall’s fax campaign show error messages, 

such as “No carrier detected,” “Busy signal detected,” “Unknown 

problem (check modem power)” for some fax numbers. [Docket Item 

30-4 at 26.] Plaintiff’s proposed class only includes the 29,113 

unique fax numbers that received “successful transmissions” and 

excludes the numbers to which the advertisement was not 

successfully sent. [Docket Item 30-4 at 57.] Defendants have not 

adduced any evidence contradicting Plaintiff’s expert’s report 

and its explanation that “successfully sent” means that the 

recipient’s machine successfully received the fax. The Court 

finds that the B2B transmission reports for the faxes at issue 

are sufficiently reliable that they can be used to identify 
22 

those fax machines to which the advertisements were successfully 

sent as part of the fax campaigns. That Plaintiff’s machine is 

on the listing of successful transmissions is strong evidence 

Plaintiff received, and thus was harmed by, the unsolicited 

faxes. 

The Court is also not persuaded by Palm Beach Golf’s 

requirement that the plaintiff must attribute a specific injury, 

such as an unavailable fax line, to the unsolicited fax 

advertisement. The TCPA prohibits sending unsolicited fax 

advertisements; it does not prohibit the sending of unsolicited 

fax advertisements only when there are specific harms that a 

plaintiff can later identify. As a general principle, “[a] 

plaintiff need not demonstrate that he or she suffered actual 

monetary damages because ‘the actual or threatened injury 

required by Art. III may exist solely by virtue of statutes 

creating legal rights, the invasion of which creates standing.’” 

Alston v. Countrywide Fin. Corp., 585 F.3d 753, 763 (3d Cir. 

2009) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 

(1982)). The Plaintiff need not prove that he consumed toner or 

paper to show that his TCPA rights were invaded. 

In Reliable Money Order, Inc. v. McKnight Sales Co., Inc., 

281 F.R.D. 327, 331 (E.D. Wis. 2012), aff'd, 704 F.3d 489 (7th 

Cir. 2013), the defendant argued that the plaintiff lacked 
23 

standing because the plaintiff was “completely unaware of ever 

having allegedly received” a facsimile advertisement from the 

defendant. The McKnight Sales court rejected this argument and 

held that “the fact that Reliable Money does not personally 

recall receiving the ‘junk fax’ is inconsequential because 

personal knowledge of receipt is not necessary under the TCPA. I 

therefore find that Reliable Money has standing . . . .” Id. 

This Court agrees. “In enacting the TCPA, Congress chose to make 

evidence of transmission of the facsimile sufficient for Article 

III standing by the plain language of the statute.” Bridgeview 

Health Care Ctr. Ltd. v. Clark, 09-5601, 2013 WL 1154206, at *3 

(N.D. Ill. Mar. 19, 2013) (emphasis in original). Moreover, “the 

TCPA damages provision was not designed solely to compensate 

each private injury caused by unsolicited fax advertisements, 

but also to address and deter the overall public harm caused by 

such conduct.” Texas v. Am. Blastfax, Inc., 121 F. Supp. 2d 

1085, 1090 (W.D. Tex. 2000). 

The B2B evidence sufficiently establishes that City Select 

has standing. 

C. Discovery Issues 

At oral argument, Defendants’ counsel argued that, if the 

Court declines to deny Plaintiff’s motion, then the Court must 

order additional discovery because the Abrahams did not appear 
24 

for their depositions, Pellegrini did not bring documents to his 

deposition, and Wanca asserted attorney-client privilege in 

response to certain questions at his deposition. The Court will 

not order any further discovery before deciding the class 

certification motion. 

Defendants emphasize that the Abrahams did not appear for 

their depositions, but Judge Williams issued an order noting 

that “Defendants’ counsel unjustifiably refused to cooperate 

with third-party Defendants to find a mutually convenient time 

and place for their depositions.” [Docket Item 84 at 4.] Judge 

Williams partially granted Defendants’ motion to compel and 

ordered that “third-party Defendant Caroline Abraham shall be 

deposed on a mutually agreed upon Sunday in Brooklyn, New York 

on or before September 30, 2013” and “that insofar as 

Defendants’ counsel properly serves Joel Abraham with a 

deposition notice, he shall likewise be deposed in Brooklyn, New 

York . . . .” [Id. at 5.] Defendants did not depose the 

Abrahams. The Court will not terminate the class certification 

motion again to allow discovery that Defendants could have 

previously taken. 

In terms of Plaintiff Pellegrini’s production of documents, 

Plaintiff’s counsel appears to have produced the documents 
25 

requested by Defendants. At the deposition, Plaintiff’s counsel 

said, 

I also want the record to be clear that we have 

produced . . . a December 5th, 2009 letter from Mr. 

Wanca to City Select, . . . copies of the faxes that 

were sent, and . . . logs of the phone numbers to 

which they were sent. So although the witness doesn’t 

have those documents and didn’t produce them today, I 

want the record to be clear that they have been 

provided. 

(Pellegrini Dep. 128:24-129:13.) Defendants’ counsel responded, 

“The record will reflect the fact that you’re not a deponent and 

you’re not under oath and none of that information is a matter 

of record.” (Pellegrini Dep. 129:14-18.) Pellegrini’s deposition 

occurred on February 28, 2013. If Defendants had not received 

the document production from Plaintiff’s counsel, then they 

could have asked Plaintiff’s counsel to resend the documents. If 

there were documents that Defendants sought and were not 

produced, Defendants could have conferred with Plaintiff’s 

counsel and, if necessary, filed a discovery motion. 

Brian Wanca was deposed on July 12, 2013. If there were 

concerns with his invocation of attorney-client privilege, 

Defendants could have contacted the Court or filed an 

appropriate motion. Defense counsel did not do so. 

The Court had administratively terminated the class 

certification motion in December of 2012 to allow Defendants 

ample time to conduct discovery and that period was extended. 
26 

The time to raise discovery issues has long passed. The Court 

will not grant Defendants’ request to terminate the motion to 

order more discovery.3 “To further delay the class certification 

determination would only serve to postpone indefinitely the 

resolution of this dispute.” Curley v. Cumberland Farms Dairy, 

Inc., 728 F. Supp. 1123, 1128 (D.N.J. 1989).4

D. Federal Class Certification Law Governs 

Defendants argue that class certification is improper 

because state law applies and New Jersey state law prohibits 

class certification in TCPA cases. This argument lacks merit. 

The TCPA provides that “[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” certain actions to 

enjoin TCPA violations or to recover actual monetary loss. 47 

U.S.C. § 227(b)(3). Defendant argues that this provision 

requires the Court to apply New Jersey law to the class 

certification question. The New Jersey Appellate Division has 

 

3 Defendants will have the opportunity to obtain merits-based 

discovery. While the Court finds that the parties have completed 

ample discovery related to class certification issues, it does 

not rule out more in-depth plenary discovery during the period 

to be allotted in the future, if desired. 

4 At oral argument, Defendants also argued that class 

certification was inappropriate because of Plaintiff’s alleged 

discovery violations in the Winter’s litigation. If there were 

discovery violations in that case, Defendants should have raised 

them before the New Jersey Superior court. 
27 

held that “a class action suit is not a superior means of 

adjudicating a TCPA suit.” Local Baking Products, Inc. v. Kosher 

Bagel Munch, Inc., 421 N.J. Super. 268, 280 (App. Div. 2011). 

Multiple federal courts have held that federal, not state, 

law applies to class certification in TCPA cases. The starting 

point for many of these decisions is Mims v. Arrow Fin. Servs., 

LLC, 132 S. Ct. 740, 751 (2012), in which the Supreme Court 

assessed the TCPA and stated: 

We are not persuaded, moreover, that Congress sought 

only to fill a gap in the States' enforcement 

capabilities. Had Congress so limited its sights, it 

could have passed a statute providing that out-ofstate telemarketing calls directed into a State would 

be subject to the laws of the receiving State. 

Congress did not enact such a law. Instead, it enacted 

detailed, uniform, federal substantive prescriptions 

and provided for a regulatory regime administered by a 

federal agency. 

In Mims, the Supreme Court held that the TCPA provides for 

federal causes of action. In other words, as Judge Hayden found, 

“federal courts remain available as separate and independent 

fora for plaintiffs to vindicate their rights under this federal 

law [TCPA].” Landsman & Funk, P.C. v. Skinder-Strauss 

Associates, Civ. 08-3610 KSH, 2012 WL 6622120, at *6 (D.N.J. 

Dec. 19, 2012). And “a federal court addressing a federal law 

that serves an important federal interest would be remiss were 

it to hold that a plaintiff's claim must be dismissed because of 
28 

a state law.” Id. It follows that § 227(b)(3) recognized a 

concurrent jurisdiction for TCPA cases in the state court only 

as permitted by state laws or rules, without purporting to limit 

TCPA cases in federal court. 

Several other courts post-Mims have concluded that federal 

law governs in federal TCPA actions, particularly on the class 

certification question. See, e.g., A & L Indus., Inc. v. P. 

Cipollini, Inc., Civ. 12-07598, 2013 WL 5503303, at *5 (D.N.J. 

Oct. 2, 2013) (rejecting Local Baking Products and holding that 

“the facts and issues at the core of the instant TCPA claim are 

better off resolved in a single class action than in numerous 

individual ones”); Bais Yaakov of Spring Valley v. Peterson's 

Nelnet, LLC, Civ. 11–00011, 2012 WL 4903269, at *7 (D.N.J. Oct. 

17, 2012) (“In light of Mims, . . . this Court does not believe 

it appropriate to interpret the text of § 227(b)(3) as requiring 

a federal court to follow state law.”); Bank v. Spark Energy 

Holdings, LLC, Civ. 11–4082, 2012 WL 4097749, at *2 (S.D. Tex. 

Sept. 13, 2012) (“federal law permits plaintiffs to bring TCPA 

claims as class action”); Jackson's Five Star Catering, Inc. v. 

Beason, Civ. 10–10010, 2012 WL 3205526, at *4 (E.D. Mich. July 

26, 2012) (“Section 227(b)(3) . . . does not speak to actions 

brought in the federal courts and does not require that state 

substantive law and procedural rules be imported into federal 
29 

actions”); Bailey v. Domino's Pizza, LLC, 867 F.Supp.2d 835, 841 

(E.D. La. 2012) (“Section 227(b)(3) applies to TCPA claims 

brought in state court but by its plain language does not reach 

a TCPA claim brought in federal court . . .”). 

 Defendant argues that interpreting § 227(b)(3) to permit 

this action to proceed as a class action violates statutory 

construction rules and ignores the TCPA’s plain text. This 

argument is unpersuasive because “the interpretation . . . 

supported by Mims does not require courts to overlook the 

statutory text. To the contrary, . . . it requires courts to 

read the statute literally and to recognize that the restrictive 

language applies to actions brought in courts of a state.” 

Landsman & Funk, 2012 WL 6622120 at *8. Furthermore, the 

Landsman & Funk court found that “there is support for the 

principle that where it is necessary to overlook statutory 

language in order to apply the Supreme Court's interpretational 

guidance, lower courts must do so.” Id. (citing United States v. 

Taylor, 686 F.3d 182, 193 (3d Cir. 2012), for proposition that 

“specific, on-point Supreme Court cases . . . take precedence 

over that broad, generally applicable canon of statutory 

interpretation”). 

 Defendant also cites Bonime v. Avaya, Inc., 547 F.3d 497 

(2d Cir. 2008), and Holster v. Gatco, Inc., 618 F.3d 214 (2d 
30 

Cir. 2010), which hold that §227(b)(3) permits TCPA actions in 

federal court only if state law would permit such actions. But, 

in Giovanniello v. ALM Media, LLC, 726 F.3d 106, 111 (2d Cir. 

2013), the Second Circuit held “Mims fundamentally shift[ed] the 

way that we view section 227(b)(3)'s ‘if otherwise permitted’ 

language . . . .” The Giovanniello court concluded that “Mims's 

holding thus suggests that section 227(b)(3)'s state-oriented 

language applies only to TCPA claims in state court, not the 

universe of TCPA claims. We therefore hold that Mims . . . 

undermines the holdings of . . . Bonime, and Holster . . . .” 

Id. at 113. Thus, Bonime and Holster are no longer valid in the 

Second Circuit on this issue. 

 Federal, not New Jersey state, law applies to the class 

certification question presently before the Court. 

E. Class Certification Standard 

The party seeking class certification must establish: 

(1) the class is so numerous that joinder of all 

members is impracticable [numerosity]; (2) there are 

questions of law or fact common to the class 

[commonality]; (3) the claims or defenses of the 

representative parties are typical of the claims or 

defenses of the class [typicality]; and (4) the 

representative parties will fairly and adequately 

protect the interests of the class [adequacy]. 

In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 n.6 

(3d Cir. 2008) (citing Fed. R. Civ. P. 23(a)). If all Rule 23(a) 
31 

requirements are met, the class certification analysis proceeds 

to the type of class. Plaintiffs seek certification under Rule 

23(b)(3), which is permissible when the court “finds that the 

questions of law or fact common to class members predominate 

over any questions affecting only individual members, and that a 

class action is superior to other available methods for fairly 

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 

23(b)(3). Predominance “tests whether proposed classes are 

sufficiently cohesive to warrant adjudication by representation 

. . . Issues common to the class must predominate over 

individual issues . . . .” Hydrogen Peroxide, 552 F.3d at 310-11 

(internal citations omitted). 

“Factual determinations supporting Rule 23 findings must be 

made by a preponderance of the evidence.” Id. at 307. 

F. Plaintiff’s Class Certification Motion Will be Granted 

1. Satisfaction of F.R.C.P. 23 

Plaintiff has satisfied the numerosity, typicality, and 

commonality requirements. 

Plaintiff has shown that David Randall’s faxes were sent to 

29,113 unique numbers. The class is so numerous that joinder of 

all members is impracticable. 

Defendants argue that the class is not ascertainable. 

Ascertainability entails two elements: “First, the class must be 
32 

defined with reference to objective criteria. Second, there must 

be a reliable and administratively feasible mechanism for 

determining whether putative class members fall within the class 

definition.” Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 

(3d Cir. 2013). “If class members are impossible to identify 

without extensive and individualized fact-finding or ‘minitrials,’ then a class action is inappropriate.” Marcus v. BMW of 

N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012). “Rule 23(a)(1) 

does not require a plaintiff to offer direct evidence of the 

exact number and identities of the class members. But . . . a 

plaintiff must show sufficient circumstantial evidence specific 

to the products, problems, parties, and geographic areas 

actually covered by the class definition . . . .” Id. at 596. 

Defendants cites Compressor Eng'g Corp. v. Mfrs. Fin. 

Corp., 292 F.R.D. 433 (E.D. Mich. 2013), in which the district 

court denied class certification because the class was not 

ascertainable. The Compressor Engineering court held that 

“certify[ing] a class of persons who ‘were sent’ certain fax 

advertisements . . . . accomplishe[s] nothing in the way of 

preventing multiple claims” because “a person who ‘was sent’ a 

fax advertisement” is unclear: “does that include the person who 

owned the fax machine, the person to whom the fax advertisement 

was addressed, the person who happened to pick up the fax ad 
33 

from the machine, the person who opened the account and paid the 

bill for the telephone line that the fax machine used to receive 

signals, or all of the above?” Id. at 449.5 The Compressor 

Engineering court also determined that individualized 

determinations would be necessary to ascertain class members 

because “it is not uncommon for one person or entity to be 

connected to a phone number used to send or receive fax 

transmission signals while another person or entity actually 

owns the fax machine that received a fax transmission via that 

telephone number on the date in question.” Id. at 451. 

In this case, however, the named Plaintiff owned the fax 

machine in 2006 and has always had the same fax number. In terms 

of the class, Plaintiff has provided data showing 29,113 unique 

fax numbers within specified zip codes. At oral argument, 

Plaintiff’s counsel argued that determining the owners of the 

fax machines corresponding with the fax numbers would be 

feasible through the claims administration process. Other courts 

have agreed. See, e.g., G.M. Sign, Inc. v. Finish Thompson, 

Inc., Civ. 07-5953, 2009 WL 2581324, at *4 (N.D. Ill. Aug. 20, 

2009) (plaintiff “may use the log and fax numbers to ‘work 

 

5

 The question of the person to whom the fax advertisement was 

addressed is not applicable because Defendants’ fax 

advertisements were not addressed to anyone; the first words 

were “Roof Leaks??? Repairs Available.” 
34 

backwards’ to locate and identify the exact entities to whom the 

fax was sent”); G.M. Sign, Inc. v. Franklin Bank, S.S.B., Civ. 

06-949, 2008 WL 3889950, at *3 (N.D. Ill. Aug. 20, 2008) 

(“Though the logs do not definitively establish the identities 

of the recipients without further investigation on the part of 

class counsel, they provide enough information to enable counsel 

to locate them”). This Court will follow the Northern District 

of Illinois and hold that this class is ascertainable based on 

the list of fax numbers who were successfully sent David 

Randall’s advertisement in 2006. 

In addition, there are common questions of law and fact 

because all class members have TCPA claims based on Defendants’ 

mass advertising campaign. Because Defendants engaged in a mass 

campaign, common questions predominate. The legal claims are all 

the same, and the evidence, i.e. B2B’s hard drive, is the same. 

The record does not indicate that City Select’s claim is unique 

and, thus, Plaintiff’s claim is typical of the class. 

Defendants argue that individual questions of consent 

predominate and cite Forman v. Data Transfer, Inc., 164 F.R.D. 

400, 404 (E.D. Pa. 1995), in which the district court held that 

there was “no common nucleus of operative facts present for the 

entire class” and the transmissions to each plaintiff 
35 

“necessarily occur[red] in different places, at different times 

and under differing circumstances.” Id. at 404. 

Defendants’ argument is unpersuasive. Forman was not a B2B 

case. In the present case, there is no dispute that B2B compiled 

lists of recipients based on geographic areas. Defendant has not 

indicated that the fax recipients were people with whom David 

Randall had established business relationships or who had 

granted David Randall permission for advertisements. Plaintiff 

has established a common nucleus of operative facts because all 

members of the class received advertisements through the same 

mass advertising campaign. In dicta, the Third Circuit approved 

of a district court case holding that “the defendant's fax 

broadcasts were transmitted en masse . . . and that, under these 

circumstances, the consent question could be understood as a 

common question.” Landsman & Funk PC v. Skinder-Strauss 

Associates, 640 F.3d 72, 94 (3d Cir. 2011) (discussing holding 

in Hinman v. M&M Rental Center, Inc., 545 F. Supp. 2d 802 (N.D. 

Ill. 2008)).6 Judge Chesler of this Court has certified a class 

 

6

 The primary issue in Landsman & Funk was federal jurisdiction 

over TCPA claims. The Third Circuit granted rehearing en banc. 

Landsman & Funk, 650 F.3d 311 (3d Cir. 2011). After the Supreme 

Court issued Mims, the Third Circuit vacated the order granting 

en banc rehearing and partially reinstated the original opinion. 

Landsman & Funk, 09-3105, 2012 WL 2052685 (3d Cir. Apr. 17, 

2012). The subsequent history does not impact the Third 

Circuit’s discussion of consent as a common question. 
36 

in a TCPA action based on B2B hard drive evidence, noting that 

the evidence of a mass advertising campaign through B2B “tends 

to negate individualized issues that often arise in TCPA cases, 

such as whether any recipient consented to receive the fax . . . 

or whether Defendant had a prior relationship with any 

recipient.” A & L Indus., Inc. v. P. Cipollini, Inc., Civ. 12-

07598 (SRC), 2013 WL 5503303, at *3 (D.N.J. Oct. 2, 2013); see 

also Savanna Grp., Inc. v. Trynex, Inc., 10-CV-7995, 2013 WL 

66181, at *3 (N.D. Ill. Jan. 4, 2013) (rejecting defendants’ 

consent-based arguments against class certification because “not 

only have Defendants failed to offer specific evidence of 

consent or a prior business relationship between [defendant] and 

the intended fax recipients . . ., but it is undisputed that 

[defendant] engaged a third-party, B2B, to send faxes”). There 

is no suggestion in this record that David Randall Associates 

supplied a customer or contact list to B2B for purposes of these 

mass faxing solicitations. Essentially, because all the faxes 

were sent through a mass campaign, individual questions of 

consent do not predominate. 

Defendants also argue that common issues do not predominate 

because the proposed class members must prove, on an individual 

basis, that the member received the fax. The Northern District 

of Illinois disregarded this argument in CE Design Ltd. v. Cy's 
37 

Crabhouse North, Inc., 259 F.R.D. 135 (N.D. Ill. 2009). In 

ruling on a motion to certify a class of fax recipients, the 

Cy's Crabhouse court found that “B2B kept fax logs in connection 

with individual clients. There is no indication--and defendants 

have offered no evidence suggesting . . . commingled fax logs 

for different clients. Plaintiff has provided circumstantial 

proof of receipt by all of the numbers to which the fax logs 

indicate faxes were successfully sent . . .” Id. at 142. In 

other words, Plaintiff “has proffered the fax transmission logs 

documenting the contacts to whom [the fax broadcasting service] 

successfully sent the fax. These logs are sufficient . . . .” 

Holtzman v. Turza, 2009 WL 3334909, *5 (N.D. Ill. Oct. 14, 

2009). This Court agrees. In addition, as discussed supra, 

Plaintiff’s expert compiled a list of the fax numbers that were 

“successfully sent” and explained that a “successfully sent” 

message indicates that all phases or fax transmission were 

completed. The Court therefore finds that individualized 

questions of receipt do not predominate. 

Plaintiff has satisfied the numerosity, typicality, 

commonality, and predominance requirements by a preponderance of 

the evidence of record in this motion. 
38 

2. Suitability of Class Representative 

Defendants argue that City Select is not an adequate class 

representative. This argument lacks merit. 

Defendants note that City Select published its fax number 

on the internet in 2006 and they argue that, by publishing its 

fax number, City Select consented to receive fax advertisements. 

Fax advertisements are not prohibited if the unsolicited 

advertisement is “from a sender with an established business 

relationship” and the sender obtained the fax number through an 

internet website. 47 C.F.R. § 64.1200(a)(4). The Federal 

Communications Commission specified that “senders of facsimile 

advertisements must have an EBR [existing business relationship] 

with the recipient in order to send the advertisement . . . . 

The fact that the facsimile number was made available in a 

directory, advertisement or website does not alone entitle a 

person to send a facsimile advertisement to that number.” In the 

Matter of Rules & Regulations Implementing the Tel. Consumer 

Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C.R. 

3787, 3796 (2006)). In other words, publishing a fax number on a 

website, in and of itself, does not constitute consent to 

receive unsolicited fax advertisements. Even if City Select’s 

website was the source of its fax number, there is no indication 
39 

that David Randall had an established business relationship with 

City Select. 

At the second oral argument, Defendants cited multiple 

cases in which they claimed that courts found consent to receive 

fax advertisements through fax numbers on websites. A review of 

these cases shows that publishing a fax number on a website does 

not, in and of itself, constitute consent to receive unsolicited 

fax advertisements. For example, in CE Design Ltd. v. King 

Architectural Metals, Inc., 637 F.3d 721, 724-25 (7th Cir. 

2011), the Seventh Circuit vacated a class certification in a 

TCPA case because the named plaintiff had published its fax 

number on its website, had “engendered doubts about his 

truthfulness,” and had “signed a form that both authorized the 

publication of its fax number in the Blue Book of Building and 

Construction . . . and authorized the other subscribers to the 

Blue Book, such as [defendant], to ‘communicate’ with it, 

including via fax.” The Seventh Circuit based its decision on 

the combination of these three factors and specifically noted 

that the Blue Book listing, which involved consenting to receive 

faxes from other Blue Book subscribers including the defendant, 

was “[m]ore important” than the fax number on the website. Id. 

at 725. There is no indication in the present record that B2B 

was transmitting fax solicitations to companies that were fellow 
40 

members with David Randall in a business directory whereby 

members consented to receive faxed communications from one 

another. 

Defendant also cited Landsman & Funk, P.C. v. Lorman Bus. 

Ctr., Inc., Civ. 08-481, 2009 WL 602019 (W.D. Wis. Mar. 9, 

2009), in which the district court granted the defendant’s 

motion to dismiss and denied class certification. The defendant, 

Lorman Business Center, sent the plaintiff faxes advertising 

continuing education seminars. The district court held that 

these fax advertisements were not unsolicited because the 

plaintiff’s president had previously submitted a seminar 

enrollment form in which he listed the plaintiff’s fax number. 

The form explained that “PROVIDING YOUR FAX NUMBER CONSTITUTES 

AN EXPRESS INVITATION TO SEND YOU FAX ADVERTISEMENTS ABOUT 

FUTURE LORMAN SEMINARS.” Id. at *2. The district court held that 

the president’s submission of this form constituted “express 

permission to send fax advertisements to plaintiff’s fax 

number.” Id. at *1. Similarly, in Practice Mgmt. Support Servs., 

Inc. v. Appeal Solutions, Inc., Civ. 09-1937, 2010 WL 748170 

(N.D. Ill. Mar. 1, 2010), the district court granted summary 

judgment to the defendants because the plaintiff’s president had 

visited the defendant’s website, submitted a form on that 

website that the defendant used to collect information from 
41 

people or businesses interested in its products, and provided 

plaintiff’s contact information, including the fax number. The 

district court thus found “that plaintiff's voluntarily [sic] 

communication of its fax number precludes Practice Management 

from asserting that the faxes were unsolicited under the TCPA.” 

Id. at *3.7 None of the cases that Defendants cited hold that 

publishing a fax number on a website, without more, establishes 

consent to receive fax advertisements. Indeed, to hold that one 

who merely publishes its fax number thereby consents to 

unsolicited advertising solicitations would gut the remedial 

purposes of the TCPA, since publicly available fax numbers are 

the source of the recipient contact information to which 

unsolicited and unwanted faxes are sent. 

Defendants also argue that Plaintiff’s counsel, not 

Plaintiff, are controlling the litigation. Defendants argue that 

Plaintiff’s counsel “are the actual parties in interest; that 

 

7

 Defendants also cited W. Concord 5-10-1.00 Store, Inc. v. 

Interstate Mat Corp., Civ. 10-00356, 2013 WL 988621 (Mass. 

Super. Mar. 5, 2013), which is wholly inapplicable. The W. 

Concord court denied class certification because “[i]t is less 

clear that the named plaintiff has the ability and the incentive 

to vigorously represent the claims of the class. This is the 

fourth case he has brought; two of the other three were settled, 

at least one individually, and the third has been ‘dropped.’” 

Id. at *5. There is no such evidence about City Select in the 

record before the Court. Moreover, the W. Concord court was a 

state court and it held that TCPA claims should be brought in 

small claims court. Massachusetts state law on class 

certification in TCPA cases is inapplicable here. 
42 

they illegitimately obtained and have maintained possession of 

the entire foundation on which this case is based – the subject 

hard drive; and that they have improperly solicited plaintiffs 

and manufactured ‘evidence’ through their possession of that 

drive.” (Def. 1st Opp’n at 8.) 

This argument lacks merit. “Experience teaches that it is 

counsel for the class representative and not the named parties, 

who direct and manage these actions. Every experienced federal 

judge knows that any statements to the contrary is sheer 

sophistry.” Greenfield v. Villager Indus., Inc., 483 F.2d 824, 

832 n.9 (3d Cir. 1973). In addition, the requirement that a 

class representative “fairly and adequately protect the 

interests of the class” seeks “to uncover conflicts of interest 

between named parties and the class they seek to represent.” In 

re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 

2004). In other words, “the class representative must not have 

interests antagonistic to those of the class . . . .” Szczubelek 

v. Cendant Mortgage Corp., 215 F.R.D. 107, 119 (D.N.J. 2003). 

The record does not indicate any potential conflict of interest 

between City Select and other class members. City Select did not 

want to receive such faxes and Mr. Pellegrini testified to his 

“pet peeve” about junk faxes, which he regarded as wasting his 

money and stealing employee time, as discussed above. Although 
43 

he does not recollect the specific faxes in this case, he is far 

from indifferent to the issues and he appears to work well with 

the attorneys. 

In addition, a class representative “need only possess ‘a 

minimal degree of knowledge necessary to meet the adequacy 

standard.’” New Directions Treatment Servs. v. City of Reading, 

490 F.3d 293, 313 (3d Cir. 2007) (quoting Szczubelek, 215 F.R.D. 

at 119). “[A] proposed representative’s lack of particularized 

knowledge concerning the dispute at issue ‘does not render her 

inadequate given the fact that she has retained adequate counsel 

to represent her.’” Szczubelek, 215 F.R.D. at 120 (quoting 

Ettinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 122 

F.R.D. 177, 182 (E.D.Pa. 1988)). Moreover, “[t]his is a fax junk 

case, and the evidence is not complex. The same evidence of 

Defendant's advertising campaign will govern Plaintiff's claim 

and the claims of every other class member.” Imhoff Inv., LLC v. 

SamMichaels, Inc., Civ. 10-10996, 2012 WL 2036765, at *4 (E.D. 

Mich. May 21, 2012) (named plaintiff satisfied adequacy 

requirements even though the class representative is a company 

whose principal has dementia). 

The Court finds Mr. Pellegrini possesses more than minimal 

knowledge and motivation and that City Select is an adequate 

class representative. 
44 

3. Admissibility of Hard Drive Evidence 

The admissibility of the hard drive evidence is integral to 

Plaintiff’s case because the class’ claims rest upon the B2B 

hard drive. 

Plaintiff cites Caroline Abraham’s affidavit to introduce 

the hard drive. Defendants argue that Caroline Abraham’s 

affidavit is invalid because it “recites certain actions Ms. 

Abraham took which ‘satisfied the items Anderson & Wanca was 

seeking,’ but it does not identify any of the instructions or 

requests that the firm gave her.” (Def. 1st Opp’n at 14.) 

Defendants challenge “the accuracy of that document and whether 

it was given in return for money and/or improper promises to 

protect her from third party suits.” (Def. 1st Opp’n at 14.) 

Even if the affidavit were insufficient, it is not the only 

means of introducing the hard drive evidence. Plaintiff can, for 

example, subpoena Caroline and Joel Abraham or call Ryan Kelly 

to testify regarding the hard drive’s chain-of-custody and the 

materials that he provided to Plaintiff’s expert witness. 

The Court finds prima facie evidence of the hard drive’s 

admissibility. There is a foundation for its authenticity under 

Fed. R. Evid. 902 and for its recognition as a business record 

under Fed. R. Evid. 803(6). The Court will not find, at this 

time, that the hard drive is inadmissible without an evidentiary 
45 

hearing, particularly when it appears that Plaintiff can 

subpoena the principals to address potential evidentiary 

deficiencies. Moreover, the hard drive’s admissibility is a 

common question applicable to all class members, thus supporting 

certification because the TCPA claims are “capable of proof 

through common evidence.” Sullivan v. DB Investments, Inc., 667 

F.3d 273, 305 (3d Cir. 2011). 

Defendants’ challenges to the hard drive’s admissibility 

are not sufficiently weighty to defeat Plaintiff’s showing of 

probable admissibility, let alone to preclude class 

certification. 

4. Suitability of Class Counsel 

Plaintiff’s proposed class counsel are experienced lawyers 

who will adequately represent the class. Plaintiff submitted 

firm resumes for Sherman, Silverstein, Kohl, Rose & Podolsky, 

P.A.; Bock & Hatch, LLC; and Anderson & Wanca.8 

In appointing class counsel, the Court must consider “(i) 

the work counsel has done in identifying or investigating 

potential claims . . .; (ii) counsel's experience in handling 

class actions, other complex litigation, and the types of claims 

 

8

 At the second oral argument, Plaintiff’s counsel stated that 

they no longer sought Anderson & Wanca’s appointment as class 

counsel. The Court will not consider Anderson & Wanca’s 

credentials. 
46 

asserted . . .; (iii) counsel's knowledge of the applicable law; 

and (iv) the resources that counsel will commit to representing 

the class.” Fed. R. Civ. P. 23(g)(1)(A). 

The Court finds that Sherman, Silverstein, Kohl, Rose & 

Podolsky, P.A. and Bock & Hatch, LLC have experience to 

represent the class adequately. Bock & Hatch, in particular, has 

litigated TCPA class action cases to successful resolution. 

Defendants argue that Alan Milstein, who is with Sherman, 

Silverstein, Kohl, Rose & Podolsky, P.A., is inadequate class 

counsel because he moved late for class certification in 

Winter’s and settled the matter for $1,500. The Court disagrees. 

In this action, Milstein moved promptly for class certification. 

And, in Winter’s, he obtained a reasonable settlement for his 

client based upon the TCPA’s statutory damages award. 

Defendants emphasize that class counsel are inadequate 

because Plaintiff’s retainer agreement was signed by Brian Wanca 

and Phillip Bock, two attorneys who have not appeared in this 

case and who are not licensed in New Jersey. Phillip Bock is a 

named partner at Bock & Hatch, which seeks appointment as class 

counsel. Tod Lewis, a Bock & Hatch attorney, has represented 

Plaintiff competently in multiple oral arguments, conference 

calls, and court filings. Defendant has not cited any case law 

denying appointment of class counsel because the named partner 
47 

signed a retainer agreement and a different attorney at the firm 

handled the court appearances and filings. Defendant also has 

not cited any case law denying class certification because the 

attorneys on the retainer agreement are not licensed in a 

particular state. In this case, Plaintiff’s counsel has worked 

with local counsel, Alan Milstein, who is licensed in New 

Jersey, and Tod Lewis and other attorneys were admitted pro hac 

vice. Moreover, the retainer agreement notes that “Attorneys may 

retain other counsel to assist in the litigation.” [Docket Item 

88-1 at 1.] The names on the retainer agreement do not preclude 

class certification. 

Defendants assert that class counsel are also inadequate 

because the retainer agreement states that “Client understands 

and agrees that Attorneys will seek an attorneys fee award equal 

to one-third of any benefit conferred upon the class, and Client 

expressly agrees not to oppose Attorneys’ request.” [Docket Item 

88-1 at 1.] Defendants cite another B2B case in which the named 

plaintiffs had “agreed, in advance, not to contest a one-third 

contingency fee request by counsel—regardless of the amount of 

work actually performed by Counsel in these cases.” Compressor 

Eng'g Corp. v. Mfrs. Fin. Corp., 292 F.R.D. 433, 446 (E.D. Mich. 

2013). The Compressor Engineering court found the fee agreement 

to be “troubling . . . in light of the repetitive nature of 
48 

these actions and considering the amount of work actually 

performed by Counsel in relation to the settlements and/or 

judgments that have been obtained in other cases.” Id. 

The fee provision in the retainer agreement does not 

preclude class certification. The retainer agreement states that 

“any fee for Attorneys’ services . . . is contingent upon 

gaining a recovery against or successful result from Defendant. 

Attorneys will be compensated only if a successful result is 

achieved . . . attorneys fees will be determined or approved by 

the court and will be payable solely by Defendant and/or out of 

any recovery or benefits obtained . . . .” [Id. (emphasis in 

original).] If a class is certified, the Court retains ultimate 

authority to approve a fee award and the Court will consider the 

work performed and the benefit conferred upon the class in this 

case, as well as all other appropriate factors, in making its 

determination. 

Defendants also argue that Plaintiff’s counsel’s previous 

dealings with the Abrahams, Rubin, and Winter’s show that they 

are unethical, inadequate class counsel. Even though the Court 

is only considering Sherman, Silverstein, Kohl, Rose & Podolsky, 

P.A., and Bock & Hatch, LLC, as class counsel, the Court will 

address these arguments because Defendants argue that those two 
49 

firms are involved with Anderson & Wanca, the allegedly 

offending firm. 

Defendants cite another case involving Anderson & Wanca and 

the Abrahams’ hard drive in which the Seventh Circuit stated, 

“class counsel have demonstrated a lack of integrity that casts 

serious doubt on their trustworthiness as representatives of the 

class.” (Def. 1st Opp’n at 5, citing Creative Montessori 

Learning Centers v. Ashford Gear LLC, 662 F.3d 913, 917 (7th 

Cir. 2011).)9 But the Creative Montessori district court 

certified the class on remand, after the Seventh Circuit’s 

opinion, and held that “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.” Creative Montessori 

Learning Ctr. v. Ashford Gear, LLC, Civ. 09-3963, 2012 WL 

3961307, *2 (N.D. Ill. Sept. 10, 2012). The district court also 

noted that “[a]t least four district courts have analyzed class 

counsel's adequacy . . . . None of those have found any reason 

to doubt counsels' loyalty to their class, despite their methods 

of obtaining plaintiffs’ names.” Id. Another district court, in 

 

9

 Defendants incorporated by reference all of the briefing and 

exhibits from the Creative Montessori case. 
50 

assessing Anderson & Wanca’s actions in obtaining the hard drive 

and other materials from the Abrahams, stated, 

Although counsel's behavior may leave something to be 

desired, I nevertheless find that counsel's behavior 

does not affect its ability to vigorously pursue the 

class members' claims. I also find that denying class 

certification on possible ethical violations occurring 

in the context of a different case is an unnecessarily 

harsh remedy that would be a disservice to the 

potential class members in this case. 

Reliable Money Order, Inc. v. McKnight Sales Co., Inc., 281 

F.R.D. 327, 337 (E.D. Wis. 2012). The Court shares these 

sentiments, especially with the benefit of the deposition 

testimony of Wanca and Ryan obtained herein. 

 Moreover, there is no indication that either Anderson & 

Wanca or Plaintiff’s proposed counsel tampered with the B2B hard 

drive or manufactured that evidence. Wanca’s deposition 

testimony indicates that he obtained the B2B hard drive so that 

his firm could examine and retrieve the contents at its own 

expense. He also testified that he intended to streamline his 

system for reimbursing the Abrahams for document retrieval and 

deposition time by having the Abrahams’ attorney distribute 

funds as needed, as opposed to writing many small checks 

himself. His methods were, at best, clumsy, but there is no 

indication that he sought to alter or otherwise corrupt the 

Abrahams’ testimony. “[U]nethical conduct . . . raises a 

‘serious doubt’ about the adequacy of class counsel when the 
51 

misconduct jeopardizes the court's ability to reach a just and 

proper outcome . . . .” Reliable Money Order, Inc. v. McKnight 

Sales Co., Inc., 704 F.3d 489, 499 (7th Cir. 2013). “[A]ctions 

such as occurred here--which do not prejudice an attorney's 

client or undermine the integrity of judicial proceedings--do 

not mandate disqualification of counsel.” Id. at 500 (analyzing 

Anderson & Wanca’s conduct in obtaining B2B hard drive). This 

Court is not left with the impression that Wanca, by forwarding 

to the Abrahams’ attorney Rubin a check for $5,000 marked 

“document retrieval,” given the course of dealings of multiple 

small reimbursements previously sent through Rubin, was 

attempting to corrupt the process or to influence the Abrahams’ 

testimony. 

Absent evidence that class counsel will represent this 

class disloyally or incompetently or evidence that their actions 

will undermine the outcome, the Court will not find them 

inadequate. “[W]hen an ethical breach neither prejudices an 

attorney's client nor undermines the integrity of the judicial 

proceedings, state bar authorities are generally better 

positioned to address the matter through disciplinary 

proceedings, rather than the courts through substantive sanction 

in the underlying lawsuit.” Id. at 502. In other words, “[w]hen 

assessing the adequacy of counsel, courts must distinguish and 
52 

disregard ‘petty issues manufactured by defendants to distract 

the judge from his or her proper focus under Rule 23(a)(3) and 

(4) on the interests of the class.’” Imhoff Inv., LLC v. 

SamMichaels, Inc., 10-10996, 2012 WL 2036765, at *2 (E.D. Mich. 

May 21, 2012) (quoting CE Design Limited v. King Architectural 

Metals, Inc., 637 F.3d 721, 728 (7th Cir. 2011)). 

Defendants assert that the solicitation letter, which Wanca 

sent to City Select, constituted the unauthorized practice of 

law and was an improper solicitation. A lawyer who is not 

admitted to New Jersey Bar and “is admitted to practice law 

before the highest court of any other state . . . may engage in 

the lawful practice of law in New Jersey only if . . . the 

lawyer is admitted to practice pro hac vice . . . or is 

preparing for a proceeding in which the lawyer reasonably 

expects to be so admitted and is associated in that preparation 

with a lawyer admitted to practice in this jurisdiction.” N.J. 

R. RPC 5.5(b)(1). At oral argument, Plaintiff’s counsel informed 

the Court that Brian Wanca had originally intended to seek pro 

hac vice admission. 

Wanca’s letter did not fully comply with the New Jersey 

Rules of Professional Conduct regarding solicitation, but it was 

not deceptive. The New Jersey Rules of Professional Conduct 

mandate that an unsolicited direct communication with a 
53 

prospective client must contain the word “ADVERTISEMENT;” a 

notice stating that “Before making your choice of attorney, you 

should give this matter careful thought. The selection of an 

attorney is an important decision”; and an additional notice 

stating “the recipient may, if the letter is inaccurate or 

misleading, report same to the Committee on Attorney 

Advertising.” N.J. R. R.P.C. 7.3(b)(5). Wanca’s letter did not 

contain the two notices and the letter stated “Advertising 

material,” not “ADVERTISEMENT.” These flaws do not preclude 

class certification. The letter was identified as an 

advertisement, and there is no indication that Wanca’s letter 

was false or misleading. The solicitation rules exist to protect 

potential clients, not to help defendants combat potentially 

meritorious claims. City Select has not complained about the 

letter. Wanca’s solicitation could merit further review before 

permitting pro hac vice admission, if he sought such admission, 

but it does not warrant denial of class certification. The Court 

should not penalize the proposed class by denying certification 

on the basis of an attorney who is not proposed as class 

counsel. 

 Defendants also argue that Plaintiff’s counsel unethically 

promised the Abrahams that they would not be sued and that 

Plaintiff should have sued the Abrahams, not the Defendants. 
54 

Plaintiff’s counsel represented, at the second oral argument, 

that there are multiple judgments against the Abrahams, 

including a $2,000,000.00 judgment that the State of Indiana 

obtained; that Caroline Abraham drives an old car; and that she 

has four college-age children. Plaintiff’s counsel perceive that 

the class would be unable to recover a judgment against the 

Abrahams because she is insolvent. There is no doubt that 

“Caroline Abraham and her company Business–to–Business Solutions 

(“B2B”) sit at the center of . . . scores of [lawsuit]s.” 

Reliable Money Order, Inc. v. McKnight Sales Co., Inc., 704 F.3d 

489, 491 (7th Cir. 2013). Plaintiff’s counsel’s assessment that 

the class would probably never be able to recover upon any 

judgment against the Abrahams is reasonable, and the strategic 

decision not to sue the Abrahams does not indicate that 

Plaintiff’s counsel will disloyally represent the class. 

Defendants also note that Plaintiff filed opposition to 

Defendants’ motion for default against the Abrahams, who are 

third-party defendants in this case. While Plaintiff’s response 

was curious,10 it did not impact the Court’s adjudication and 

 

10 Plaintiff’s response to Defendants’ default motion argued that 

“there is no valid right of contribution or indemnification, 

explicit or implicit, between TCPA tortfeasors” and that 

Defendants were strictly liable for sending the faxes. [Docket 

Item 43 at 2.] At a hearing on December 14, 2012, the Court 
55 

grant of the default motion under Rule 55(a), Fed. R. Civ. P., 

which directed the Clerk to enter default against the ThirdParty Defendants. [Docket Item 53.] 

 Essentially, while the Court “neither approve[s] of nor 

condone[s] the actions of Anderson + Wanca attorneys when 

investigating the claims in this suit, [the Court] nevertheless 

do[es] not conclude that counsels’ questionable performance in 

the investigative stage of this case prevents class 

certification.” Reliable Money Order v. McKnight Sales, 704 F.3d 

at 491. This is all the more true in the present case where 

Anderson & Wanca are not candidates for class counsel. 

Sherman, Silverstein, Kohl, Rose & Podolsky, P.A. and Bock 

& Hatch, LLC are adequate class counsel.11

 

granted default against the Third-Party Defendants [Docket Item 

53]. 

11 At the second oral argument, Defendants cited Kramer v. 

Scientific Control Corp., 534 F. 2d 1085 (3d Cir. 1976). Kramer 

is inapt. In Kramer, the Third Circuit reviewed the district 

court’s denial of a motion to disqualify class counsel, but it 

did not review the class certification decision. The question 

before the Kramer court was “[m]ay a member of the bar who is a 

plaintiff class representative in a class action . . . designate 

as his counsel a member or employee of his law firm?” Id. at 

1086. The Third Circuit held that there was an appearance of 

impropriety and reversed the district court. In this case, the 

named Plaintiff City Select and its representative Louis 

Pellegrini are not attorneys or employees of either Sherman, 

Silverstein, Kohl, Rose & Podolsky, P.A. or Bock & Hatch, LLC. 

The Kramer court did not hold that an appearance of impropriety 

regarding class counsel precludes class certification; in fact, 

the Third Circuit noted that “it should not require new counsel 
56 

5. Proposed Class Definition 

Plaintiff’s proposed class definition is: 

All persons who were successfully sent one or more 

faxes during the period March 29, 2006, through May 

16, 2006, stating, “ROOF LEAKS??? REPAIRS AVAILABLE 

Just give us a call and let our professional service 

technicians make the repairs!” and “CALL: 

David/Randall Associates, Inc. TODAY.” 

(Pl. Class Certification Mot. at 1.) 

Defendants argue that the class definition should preclude 

persons who solicited the advertisements or who had business 

relationships with David Randall. In addition, Defendants argue 

that the definition should specify that persons actually 

received the fax. 

The Court will not change the verb “sent” to “received.” 

The TCPA makes it unlawful “to send, to a telephone facsimile 

machine, an unsolicited advertisement.” 47 U.S.C. § 

227(b)(1)(C). The TCPA “does not specifically require proof of 

receipt.” CE Design Ltd. v. Cy's Crabhouse N., Inc., 259 F.R.D. 

135, 142 (N.D. Ill. 2009). The class definition will follow the 

statute’s language, using the verb “sent.” In addition, 

Defendants’ concerns are addressed because Plaintiff has 

 

an inordinate amount of time to become sufficiently familiar 

with the case to proceed to trial.” Id. at 1093. Even if 

Anderson & Wanca’s conduct created an appearance of impropriety, 

that firm will not be certified as class counsel. 
57 

restricted the class definition to include only recipients who 

were “successfully” sent the advertisements. 

Defendants’ argument regarding solicitation is meritorious. 

The Court will amend the class definition to include the word 

“unsolicited” because the TCPA only prohibits unsolicited faxes. 

In addition, the Court will add language excluding recipients 

who had established business relationships with David Randall 

because the TCPA outlines an exception, discussed above, for 

recipients with whom the sender had an established business 

relationship. 

There is no indication in this record that any class member 

solicited these faxes or had an established business 

relationship with David Randall. There have been other cases, 

not involving B2B, in which recipients explicitly or implicitly 

consented to receiving fax advertisements, such as by enrolling 

in a business directory permitting mutual solicitations among 

members. See, e.g., CE Design Ltd. v. King Architectural Metals, 

Inc., 637 F.3d 721 (7th Cir. 2011). In this case, the list of 

recipients was based on geographic proximity, but there is a 

logical possibility that somebody on the list of 29,113 unique 

fax numbers had a prior business relationship or had requested 

advertisements from David Randall. David Randall Associates has 

not suggested that it supplied a single listing to be included 
58 

in the B2B fax broadcasts but, given the logical possibility, 

the class definition will track the statutory language. These 

two additions will not impact ascertainability.12 The class 

definition will exclude recipients with a prior business 

relationship or recipients who solicited advertisements, and 

such recipients can also be excluded during any claims 

administration process following a class based judgment or 

settlement. 

The Court will also add “or entities” to the first clause 

to make clear that the class includes both “persons” and 

“entities.” This addition follows the TCPA’s language, which 

provides a private right of action to “[a] person or entity.” 47 

U.S.C. §227(b)(3). 

 

12 In other words, the class membership is presently comprised of 

the persons or entities whose fax numbers are among the 

successful transmissions on the B2B hard-drive list for the 

relevant broadcasts. This case is over thirty months old and, 

after ample class-based discovery, Defendant David Randall has 

proffered no evidence that any of its customers appear on this 

list and no evidence of circumstances from which one could be 

concerned that someone on the B2B list solicited these faxed 

advertisements. B2B, not David Randall, assembled the list of 

targeted fax addresses in the vicinity without any input of 

customer lists from David Randall. In the unlikely event that 

persons or entities with such business relationships as of 2006 

with David Randall are identified (and only David Randall would 

be in possession of such information), proper steps can be taken 

to exclude such recipients from the class in accordance with the 

class definition. The Court cannot speculate that there would be 

such exclusions on the basis of the present record. 
59 

The class definition will be as follows, with the Court’s 

additions in bold: 

All persons or entities, with whom David Randall 

Associates did not have an established business 

relationship, who were successfully sent one or more 

unsolicited faxes during the period March 29, 2006, 

through May 16, 2006, stating, “ROOF LEAKS??? REPAIRS 

AVAILABLE Just give us a call and let our professional 

service technicians make the repairs!” and “CALL: 

David/Randall Associates, Inc. TODAY.” 

Finally, the prospect that there may be multiple recipients 

at a single fax machine need not complicate the class 

definition. Any recovery will be based upon the transmissions 

that were “successfully sent” because the TCPA permits recovery 

for “each” unsolicited fax transmission. 47 U.S.C. § 227(b)(3). 

The Compressor Engineering court denied class certification 

because it found that the “successfully sent” language was vague 

and would permit multiple claims based on a single fax 

transmission. The Court disagrees. The TCPA’s language does not 

permit multiple recipients to each recover the full damages 

award from a single fax transmission. If there were multiple 

recipients for a single transmission because, for example, a fax 

machine was shared in ownership or lease obligations, then the 

recovery must be divided between the recipients. At most, this 

may be an issue for an eventual distribution of any recovery 
60 

that can be easily handled in the claims administration 

process, if a class recovery occurs.

6. Settlement Pressure 

Defendant argues that class certification will cause 

unwarranted settlement pressure. 

It is recognized that “class certification ‘may force a 

defendant to settle rather than incur the costs of defending a 

class action and run the risk of potentially ruinous 

liability.’” Hydrogen Peroxide, 552 F. 3d at 310 (quoting Fed. 

R. Civ. P. 23 advisory committee's note, 1998 Amendments). The 

Court must weigh “the potential for unwarranted settlement 

pressure” in its “‘certification calculus.’” Id. (quoting Newton 

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 

167 n.8 (3d Cir. 2001)). The Third Circuit has explained that 

“granting class certification . . . may . . . create unwarranted 

pressure to settle nonmeritorious claims on the part of 

defendants” and, thus, the district court must be “attentive[] 

to ‘the potential for unwarranted settlement pressure.’” Marcus 

v. BMW of N. Am., LLC, 687 F.3d 583, 591 at n.2 (3d Cir. 2012) 

(quoting Hydrogen Peroxide, 552 F.3d at 310). 

In this case, David Randall does not dispute that it 

engaged in this fax advertising campaign and used B2B to send 

these advertisements. In other words, there is no indication 
61 

that Plaintiff’s claims are “nonmeritorious.” Unwarranted 

settlement pressure does not preclude class certification. 

7. Common Questions of Law and Fact 

Consistent with Rule 23(c), Fed. R. Civ. P., an order 

certifying a class must identify the common questions of law or 

fact that are embraced within the class action. The Court agrees 

that at least six main common questions will be addressed in 

this class action: (1) whether the B2B hard drive evidence is 

admissible; (2) whether Defendants’ fax constitutes an 

advertisement; (3) whether Defendants violated the TCPA by 

sending the advertisements without permission of the recipients; 

(4) whether Plaintiff and other class members are entitled to 

statutory damages; (5) whether Defendants’ actions were willful 

and knowing under the TCPA and, if so, whether the Court should 

treble the statutory damages; and (6) whether the Court should 

enjoin Defendants from future TCPA violations. These will be 

certified in the accompanying Order. 

8. Requirement of Notice to Class 

Class counsel shall endeavor to draft a proposed form of 

order and notice to the members of the class in compliance with 

the requirements for a Rule 23(b)(3) class certification as set 

forth in Rule 23(c)(2)(B). If all counsel are unable to agree to 

a form of notice, Class Counsel shall file an appropriate motion 
62 

within twenty-one (21) days of the entry of the accompanying 

Order. 

IV. CONCLUSION 

Plaintiff’s motion for class certification is granted. 

Sherman, Silverstein, Kohl, Rose & Podolsky, P.A. and Bock & 

Hatch, LLC are appointed class counsel. The accompanying Order 

is entered. 

December 20, 2013 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge