Avio, Inc. v. Alfoccino, Inc.

311 F.R.D. 434, 2015 WL 8731983
CourtDistrict Court, E.D. Michigan
DecidedDecember 14, 2015
DocketNo. 10-CV-10221
StatusPublished
Cited by12 cases

This text of 311 F.R.D. 434 (Avio, Inc. v. Alfoccino, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avio, Inc. v. Alfoccino, Inc., 311 F.R.D. 434, 2015 WL 8731983 (E.D. Mich. 2015).

Opinion

AMENDED OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION AND APPOINTING CLASS COUNSEL

Gerald E. Rosen, Chief Judge, United States District Court

I. INTRODUCTION

This is one of dozens of “junk fax” cases arising out of the use of the services of Business-to-Business Solutions (“B2B”), a company that worked with businesses to send advertisements via facsimile. Plaintiffs putative class action generally asserts that B2B faxed over ten thousand advertisements on Defendants’ behalf in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). This Court previously granted Defendant’s Motion for Summary Judgment (Dkt. # 117) on the basis that Plaintiff lacked Article III standing to bring this suit and, in the alternative, that the TCPA does not provide for direct liability where a third party broadcasted the fax and that Plaintiff failed to meet its burden of production with regard to Defendants’ indirect liability. Dkt. # 132. The Sixth Circuit reversed, holding that despite its lack of personal knowledge of the faxes at issue, Plaintiff has Article III standing to bring this case, and that the TCPA does provide for direct liability against a defendant whose goods or services are advertised in the fax at issue, even if that party did not broadcast the fax. As a result of the Sixth Circuit’s opinion, Plaintiffs Motion to Certify Class, Dkt. # 109, which the Court previously dismissed as moot, is now ripe for adjudication.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Factual Background

Significant ink has been spilled describing the factual background of this case and related eases involving B2B. As the Court noted in its earlier summary judgment opinion, Judge Cox of this District has extensively outlined the genesis of these eases:

Anderson + Wanca and Bock & Hatch are two Chicago area law firms that specialize in representing plaintiffs in class action lawsuits under the Telephone Consumer Protection Act as amended by the Junk Fax Prevention Act of 2005 (the “TCPA”). The TCPA authorizes $500.00 in statutory damages for faxing an unsolicited advertisement, and each transmission is a separate violation. And the award triples upon a showing of willfulness. Because plaintiffs may enforce the statute via class action and because a single advertisement is often faxed to hundreds — -if not thousands— of phone numbers, suits under the Act present lucrative opportunities for plaintiffs’ firms.
A woman named Caroline Abraham functioned as a modern-day “typhoid mary” in the small business communities in which she operated. As the Seventh Circuit explained [in Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489 (7th Cir.2013)], Abraham and her company, Business-to-Business Solutions (’B2B’) sit at the center of this lawsuit and scores of others: B2B contracted with businesses to send advertisements via facsimile. Advertisers would pay a fee, and B2B would send the ad to hundreds of fax numbers purchased from InfoUSA, Inc. (a practice known as “fax-blasting”). Abraham, B2B’s sole employee, never obtained from the fax recipients^] permission to send them the advertisements.
* * *
Anderson + Wanca came across B2B and Abraham while they were investigating four putative class actions in Illinois. They learned that the defendants in those four cases had contracted with B2B to fax the offending advertisements. Unsurprisingly, Caroline Abraham’s B2B records became the focus of discovery. Abraham ultimately produced spreadsheets in discovery that listed only the recipients of the advertisements at issue in the four cases.
* * *
[438]*438Flush with success, Anderson + Wanca recognized that the B2B hard drives and fax lists likely contained a treasure trove of potential clients for putative class action lawsuits. So, despite having all information necessary to certify the classes in the Four Cases, Anderson + Wanca continued pushing Caroline Abraham to disclose all B2B fax transmission data. Ryan Kelly, an attorney at Anderson + Wanca, met with Caroline Abraham and asked her for the actual back-up disks and hard drive. He told her that “nobody would look at anything on these media not related” to the Four Cases. Indeed, Kelly even emailed Ms. Abraham a copy of the protective order filed in one of the Four Cases, explaining that it “will prevent [Kelly] from disclosing any of the back-up disks or hard drive to any third-party.” To receive those protections, however, the producing party had to stamp documents confidential or notify plaintiffs counsel of their confidential nature at the time of production. Ms. Abraham continued to resist.
Ultimately, plaintiffs counsel subpoenaed Joel Abraham to testify at a deposition. The subpoena also ordered Mr. Abraham to produce, at the time of his deposition, the back-up disks and hard drive. Appearing at the deposition with attorney Eric Ruben, Joel Abraham produced the materials. Neither he nor Ruben, who had read the protective order, asserted confidentiality. Even so, Anderson + Wanca later instructed defense counsel to “treat the DVD produced by Joel Abraham as confidential pursuant to the protective order[.]”
The back-up disks and hard drive revealed not only the recipients of fax advertisements sent by the defendants in the Four Cases but the names of other B2B clients as well.
Then, armed with data from B2B’s electronic files, Plaintiffs counsel filed scores of putative class actions under the TCPA. The B2B files provided a treasure trove of potential new clients for Anderson + Wan-ea, revealing the names of other potential defendants who contracted with B2B to send unsolicited fax advertising and listing the recipients of that advertising____Anderson -l- Wanca attorneys have filed over one hundred putative class actions under the Act, all rooted in data recovered from the B2B disks and hard drive.

APB Associates, Inc. v. Bronco’s Saloon, Inc., 297 F.R.D. 302, 304-06 (E.D.Mich.2013) (Cox, pJ.) (internal quotation marks and citations omitted).

Much like other B2B litigation around the countiy, this case involves faxes sent by B2B on behalf of a company that was apparently unaware those faxes were potentially made in violation of the TCPA As the Sixth Circuit in this matter succinctly explained,

Afoecino is a restaurant business with two locations. It is operated by brothers Farshid “Tony” Shushtari and Frank Shushtari. Afoecino, Tony, and an entity that is a part owner of Afoecino, Taliercio Investments, Inc., are named defendants here. Tony was responsible for Afoccino’s marketing and advertising and was the only person from Afoecino who communicated with B2B. He regularly hired a company named Value Fax to conduct fax advertising for the restaurants, but hired other companies, including B2B, to fax his advertisements “once or twice” as well. In 2006, Tony hired B2B because they did bulk faxing and cost less than Value Fax had. He directed B2B to send out 20,000 faxes to local businesses on behalf of the two Afoecino restaurants.

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Bluebook (online)
311 F.R.D. 434, 2015 WL 8731983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avio-inc-v-alfoccino-inc-mied-2015.