New TCPA class action filed in St. Clair County

Kelly Holleran Oct. 7, 2009, 3:36am

By sending unsolicited fax messages to Mixon Insurance Agency and at least 39 other businesses, Taylorville Chiropractic Clinic and its director, Philip S. Dudak, forced the companies to pay for the clinic's advertising campaign, according to a new putative class action lawsuit.

Mixon filed the putative class action complaint in St. Clair County Circuit Court on Sept. 25 against the clinic and its director, saying the defendants violated the federal Telephone Consumer Protection Act by sending the unsolicited advertisements.

Because they received the faxes unwillingly, Mixon and the other companies lost the use of their fax machine momentarily and used up ink toner and paper, the complaint says. In addition, their employees wasted time to get the fax when they could have been doing something else, the suit states.

"Defendants' unsolicited fax practice is an unfair practice, because it violates public policy, and because it forced Plaintiff and the other class members to incur expense without any consideration in return," the complaint says. "Defendants' practice effectively forced Plaintiff and the other class members to pay for Defendants' advertising campaign."

In Mixon's case, it received the unsolicited faxed advertisement on Sept. 25, 2006, according to the complaint.

Mixon would like to include in the class any company or person who received an unsolicited faxed advertisement from Taylorville within the past four years.

In its three-count suit, Mixon and the putative class are asking the court to certify the case as a class action, to award the plaintiffs $500 for each violation of the TCPA, to enter an injunction prohibiting the defendants from sending further unsolicited faxes and to award other costs and relief not to exceed $75,000 for each plaintiff. They are also asking for appropriate damages, attorneys' fees and costs.

Robert J. Sprague of Sprague and Urban in Belleville, Brian J. Wanca of Anderson – Wanca in Rolling Meadows and Phillip A. Bock of Bock and Hatch in Chicago will be representing them.

St. Clair County Circuit Court case number: 09-L-509.

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