MADISON - ST. CLAIR RECORD

A company accused of sending an unsolicited fax to a Wood River electric company removed a class action case from Madison County because damages sought are about $50 million more than a state court should allow.

The case originally was filed on Sept. 26, 2005, by Locklear Electric of Wood River alleging that unsolicited faxes it received unfairly used its paper, toner ink and electricity.

Defense lawyers removed the case to federal court in East St. Louis on Nov. 7.

Locklear claims My Overhead Corporation of Tallmadge, Ohio sent an advertisement via fax on May 18, 2005, without obtaining "prior express invitation or permission."

Represented by Lanny Darr of Schrempf, Blaine, Kelly & Darr of Alton, Locklear alleges the unsolicited fax violates the Federal Telephone Consumer Protection Act (FTCPA) and Illinois Consumer Fraud Act.

The FTCPA provides that it is unlawful for any person to use a fax machine to send an unsolicited advertisement.

Locklear claims My Overhead "willfully" sent or caused to be sent unsolicited fax advertisements, and therefore is liable for $1,500 in damages for each separate unsolicited fax sent.

In order to keep the case in state court to comply with the Class Action Fairness Act (CAFA), the suit claimed "the aggregate of the class is less than $5 million" and no member of the class is seeking damages in excess of $75,000.

However on Oct. 9, Darr filed a motion for class certification seeking to certify at least 4,000 Illinois residents as class members with a potential recovery of $1,500 each making the amount sought at $6 million.

On top of that, Darr also is trying to certify a nationwide subclass of 32,528 members who each will seek $1,500 for alleged violations of FTCPA totaling $48,720,000.

That prompted co-defendant IBID Power to file the removal notice.

IBID Power claims that once Darr filed his motion for class certification jurisdiction for the case became proper in federal court because the amount sought exceeded $5 million.

Under CAFA, claims that exceed $5 million are required to be filed in a federal court.

In his motion for certification, Darr asks the state judge to certify two separate classes, one for Illinois residents and one nationwide.

Darr also informed the court that it should "mindful of the strength" of the case even though a court shouldn't delve into the merits of the case during class certification as a practicable matter.

Darr claims My Overhead Door and IBID, which are owned by the same single shareholder, uses a company called Concord Technologies that has software that allows "blast faxing" to consumers.

He argues that since Illinois courts "strongly favor" class certification, the requirements to maintain a case as such need to be liberally construed so that classes should be certified even in a close case.

Darr further argues certification of the case is proper because the trial judge has the discretion to alter, amend or withdraw certification at any time.

"Illinois courts have been particularly receptive to class actions because a class action is one of the few legal remedies the small claimant has against those who command the status quo," Darr wrote.

He said that rationale is supported by the fact that as a "society growing in complexity there are bound to be innumerable people in common disasters, calamities, or ventures who would go begging for justice without the class action."

Darr also argues that his case is a "text book example" of a case for class certification because the class is so numerous that joinder of the claims is impracticable, there are questions of law and fact common to the class and because Locklear Electric will fairly protect the interests of the class.

Darr argues that class certification will promote judicial efficiency. He also informed the trial judge that state statute admonishes the court to determine the issue of class certification as soon as practicable.

The case has been assigned to District Judge G. Patrick Murphy and Magistrate Clifford Proud.

Ted Harvey of Belleville represents IBID.