Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc.

322 F.R.D. 458
CourtDistrict Court, N.D. Illinois
DecidedSeptember 29, 2017
Docket14 C 5602
StatusPublished
Cited by8 cases

This text of 322 F.R.D. 458 (Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc., 322 F.R.D. 458 (N.D. Ill. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge

From July to October 2013, Plaintiff Arwa Chiropractic, P.C. (Plaintiff) received a series of six faxes from Med-Care Diabetic & Medical Supplies, Inc. (Med-Care). Based upon its receipt of these faxes, Plaintiff has filed suit against Med-Care and its CEO, Steven Silverman (together, Defendants), alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. In addition, Plaintiff has alleged state law claims for conversion and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp, Stat. 505/1 et seq.

Plaintiff has filed a motion for class certification pursuant to Federal Rule of Civil Procedure (Rule) 23(b)(3), seeking certification solely with respect to its TCPA claims. For the reasons provided herein, Plaintiffs motion is granted.

I, Background

Med-Care is a for-profit company that sells medication and medical equipment to consumers. PL’s Mot. Class Certification (Pl.’s Mot.) at 2, ECF No. 93. Before Med-Care ean complete a sale of medication or medical equipment to a consumer, a licensed medical provider must prescribe the medication or equipment. Id. at 3. Thus, to process a sale to a consumer, Med-Care typically instructs one of its employees to call the consumer and request that the consumer provide his or her medical provider’s information, so that Med-Care can then contact [462]*462the medical provider to solicit a prescription. Id. at 3-4. According to Med-Care, it explains to all patients requesting a prescription that a prescription request form will be sent “on [the patient’s] behalf to [his or her] doctor.” Defs.’ Resp. at 6, EOF No. 97.

If the consumer is unable to provide full contact information for his or her medical provider, Med-Care’s employees can fill in missing details about the provider using the National Provider Index database. Pl.’s Mot. at 4. Med-Care does not contact medical providers directly to confirm the existence of a doctor-patient relationship or to obtain the provider’s contact information. Id.

From July through October 2013, Med-Care sent six “broadcasts” of faxes to thousands of medical providers. Id. at 7-8. These broadcasts were sent on July 2, July 10, October 2, October 9, October 17, and October 25, 2013. Id. at 8. In total, over 46,000 faxes were sent during these six broadcasts, and Arwa received a fax from Med-Care in each one. Id. at 7-8.

Each of the faxes sent during these six broadcasts concerned an “Ipratropium-Albu-terol Nebulizer Kit.” Id. The faxes stated: ‘Tour patient has asked us to contact you regarding authorization for a Nebulizer and its medications to help with their breathing problems. ... In order to supply those products to your patient, under the Medicare program, we must obtain a signed order by the patient’s physician.” Id.; see also PL’s Ex. I, Six Faxes at 2-8. All of the faxes sent in these broadcasts were identical except for the date and the patient- and doctor-specific identifying information listed on each fax. Id. at 8. None of the faxes contained an opt-out notice. Id. at 7.

Plaintiff contends that the faxes it received during these six broadcasts were sent in violation of the TCPA. In addition, Plaintiff has moved for class certification of its TCPA claim pursuant to Rule 23(b)(3), seeking to certify a class defined as follows:

All persons who were sent one or more facsimiles from Med-Care Diabetic & Medical Supplies of Boca Raton, FL on any of the following 6 dates: July 2, 2013, July 10, 2013, October 2, 2013, October 9, 2013, October 17, 2013, or October 25, 2013, stating, ‘Tour patient has asked us to contact you regarding authorization for a Nebulizer and its medications to help with their breathing problems. ... In order to supply those products to your patient, under the Medicare program, we must obtain a signed order by the patient’s physician.

PL’s Mot. at 9.

With the proposed class definition in mind, the Court now turns to the merits of Plaintiffs motion for class certification.

II. Legal Standard

Class certification is governed by Rule 23. Under Rule 23(a), class certification is permitted only when: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); see also Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).

In addition, when, as here, class certification is sought pursuant to Rule 23(b)(3), “proponents of the class must also show: (1) that the questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members; and (2) that a class action is superior to other available methods of resolving the controversy.” Messner, 669 F.3d at 811 (citing Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010)). Class certification is “normal” under the TCPA, “because the main questions, such as whether a given fax is an advertisement, are common to all recipients.” Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013).

It is important to note that “Rule 23 does not set forth a mere pleading standard.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014) (internal quotation marks omitted) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011)). Rather, “[plaintiffs bear the burden of showing that [463]*463a proposed class satisfies the Rule 23 requirements.” Messner, 669 F.3d at 811. As such, when reviewing a motion for class certification, a court “may not simply assume the truth of the matters as asserted by the plaintiffs],” but instead must receive evidence and resolve factual disputes as necessary to decide whether certification is appropriate. Id. (citing Szabo v. Bridgeport Mach. Inc., 249 F.3d 672, 676 (7th Cir. 2001)). “[Certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart, 564 U.S. at 350-51, 131 S.Ct. 2541 (internal quotation marks omitted).

Although “the court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits,” Messner,

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322 F.R.D. 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arwa-chiropractic-pc-v-med-care-diabetic-medical-supplies-inc-ilnd-2017.