EAST ST. LOUIS – Two U.S. district judges recused themselves from a class action claim that Auffenberg Hyundai sent telephone messages without consent.
Around the same time a potential class action under the same law collapsed.
St. Clair County resident Jennifer Staten sued Auffenberg on March 17, alleging violation of the Telephone Consumer Protection Act.
Her counsel Michael Eisenband of Fort Lauderdale, Fla. claimed she received three unsolicited messages that Auffenberg recorded.
In one, he claimed, Mike the sales manager stated he would love an opportunity to make an amazing deal.
In another, he claimed, Tom invited Staten to a sales event.
He claimed Auffenberg sent similar messages to other residents of the district.
He sought $500 per violation and $1,500 for knowing or willful violation.
He also sought an injunction against privacy invasion, harassment, aggravation, and disruption of daily lives of thousands of individuals.
The court clerk randomly assigned Chief District Judge Nancy Rostenstengel, who recused on March 28.
The clerk assigned Senior District Judge Phil Gilbert, who recused on March 29.
The clerk assigned District Judge Stephen McGlynn.
On the day Rosenstengel recused, she dismissed a class complaint that Carbondale chiropractor Richard Thalman filed under the same law last June.
His lawyers Daniel Edelman and Heather Kolbus of Chicago sought damages from FS Solutions, a Virginia business.
They claimed he received unsolicited fax ads in May and June.
FS Solutions counsel Christopher Murphy of Chicago moved to dismiss the complaint, claiming neither fax offered to sell any good or service.
He claimed that the faxes stated FS Solutions would like to send donors to Thalman for occupational health services such as physicals and drug screens.
He claimed the faxes included a provider agreement with Thalman as provider.
He also claimed Thalman’s use of paper and ink didn’t meet the requirement for actual damages under Illinois consumer law.
Kolbus responded, “It is well established that the intended purchaser of the goods or services need not be the person to whom the fax is sent.
“The economic harm inflicted on plaintiff and each other recipient of FS Solutions’s faxes is identical to that caused if one were to walk into an office supply store and abscond with 28 pages of paper and a small ink cartridge.
“It would be a strange doctrine that theft is permissible so long as the amount taken is small.”
Rosenstengel found FS Solutions didn’t encourage Thalman to purchase anything or recommend products or serve as middleman between him and his patients.
She found FS Solutions sought to add him to a database so its clients could use his services, rather than to advertise commercial availability of goods or services.
“While a fax that invites a commercial relationship or presents an opportunity to do business may be annoying, that quality alone does not render it prohibited under the Telephone Consumer Protection Act,” Rosenstengel wrote.
On April 1, Thalman filed notice that he would appeal.