IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

Law Office of Martha J. White, P.C., Plaintiff

v.

Morrissey Agency, Inc., Defendant

Case No.: 03 CH 13549

Hon. Patrick E. McGann

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the Motion of the Defendant, Morrissey Agency, Inc. (Morrissey@), to Dismiss Counts I & II of the Plaintiff=s, Law Office of Martha J. White (White@), Complaint in accordance with 735 ILCS 5/2-615 and 735 ILCS 5/2-619.

I.          WELL-PLED Facts

            On August 5, 2002, Plaintiff received an unauthorized facsimile transmission from Defendant, with whom Plaintiff had no prior relationship.  Plaintiff alleges in her Complaint that the transmission was a fax advertisement,@ prohibited under the Telephone Consumer Protection Act, 47 U.S.C. ' 227 (ATCPA@), and sent as part of a mass broadcasting.  Plaintiff further alleges that Defendant designed the advertising material in a manner calculated to make its receipt particularly expensive@ by including graphics and bold headlines, both of which consume unusually large amounts of toner or ink.

Plaintiff has initiated a class action suit against Defendant on behalf of itself and all others with Illinois fax numbers who, on or after a date four years prior to the filing of this action, were sent advertising faxes by Defendant and with respect to whom Defendant cannot provide evidence of consent or a prior business relationship.  In its Complaint, Plaintiff alleges three counts: (1) that Defendant violated the TCPA by transmitting to Plaintiff and others in its class fax advertisements; (2) that Defendant converted to its own use ink or toner and paper belonging to Plaintiff and other class members in such a way as to make them unusable; and (3) that Defendant engaged in unfair and deceptive acts and practices in the course of trade and commerce by shifting the costs of advertising to Plaintiff and other members of its class, in violation of ICFA ' 2, 815 ILCS 505/2.

Defendant now moves to dismiss Counts I and II of Plaintiff=s Complaint.

II.         Legal Standard

            A ' 2-615 Motion to Dismiss attacks the legal sufficiency of the complaint.  The motion does not raise affirmative factual defenses but alleges only defects found on the face of the complaint.  Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996).  For purposes of the motion, all well-pled facts in the complaint and those contained in attached exhibits are taken as true, however conclusions of law or factual conclusions unsupported by allegations of specific facts are not taken as true.  Vincent v. Williams, 279 Ill. App. 3d 1, 5 (1st Dist. 1996).  The question presented by a ' 2-615 Motion to Dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted.  The complaint must be construed liberally and should not be dismissed unless it appears that no set of facts can be proved under the pleadings which will entitled the plaintiff to recover.  Bryson, 174 Ill. 2d at 86-87.

A ' 2-619 Motion to Dismiss permits dismissal where the claim asserted . . . is barred by other affirmative matter avoiding the legal effect of or defeating the claim.@  735 ILCS 5/2-619(a)(9) (West 1994).  For the purposes of this motion, an affirmative manner@ is any defense that negates the asserted cause of action.  Harris v. News-Sun, 269 Ill. App. 3d 648, 650 (1^st Dist. 1995).  Thus, a ' 2-619 Motion to Dismiss admits the legal sufficiency of the plaintiff=s cause of action much in the same way that a ' 2-615 Motion to Dismiss admits a complaint=s well-pleaded facts.  Kenzie and 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993).  In ruling on a ' 2-619 motion, the court must accept as true all well-pleaded facts in the complaint under attack.  Mayfield v. Acme Barrel Co., 258 Ill. App. 3d 32, 34 (1st Dist. 1995).

III.        Discussion

           In Count I of the Complaint, Plaintiff alleges that Defendant transmitted to Plaintiff=s offices an unsolicited fax advertisement,@ in violation of the TCPA.  Plaintiff alleges at least fifty (50) such violations against Defendant on behalf of itself and members of its class.

In its ' 2-615 Motion to Dismiss Count I of the Complaint, Defendant first contends that Plaintiff has not sufficiently alleged facts to sustain a cause of action under the TCPA.  Specifically, Defendant argues that Plaintiff has not set forth specific facts as to why Defendant=s facsimile transmission is an advertisement.@  Instead, Defendant argues, the transmission is merely a request for consent,@ and the plain words of the TCPA do not proscribe faxed forms seeking consent to receive fax advertisements.@

This argument, though creative, is unpersuasive.  Defendant=s transmission consists of information describing the benefits and low prices of Defendant=s service, the availability of coverage plans, and a phone number at which Defendant=s offices can be reached.  Indeed, it is difficult to imagine a better example of an advertisement with information regarding the commercial availability or quality of any property, goods, or services,@ 47 U.S.C. ' 227(a)(4).  Moreover, Defendant=s emphasis on the request for consent@ and option . . . to check in order to decline or give its consent@ is misplaced.  Defendant=s line of reasoning would, in effect, completely nullify the purpose of this provision of the TCPA, as potential offenders could merely include a removal option on their advertisements to avoid liability.

Next, Defendant argues that it is unreasonable to construe insurance policies as property, goods, or services,@ thus they are not proscribed under the TCPA.  Following Defendant=s reasoning, the TCPA prohibits unsolicited fax advertisements featuring tangible products, but permits advertisements featuring insurance policies or other intangibles.@  Defendant offers no support for this contention, however, or any basis for which there would or should be an exception in the TCPA for insurance policies.  Moreover, in the Court=s experience insurers offer different insurance products to meet the needs of consumers seeking various types of coverage; e.g. Alife@ insurance, automobile liability@ insurance, homeowners insurance.  Alternatively, it is reasonable to infer that the facsimile message was an offer by the defendant to act as a broker by placing insurance with a carrier.  This would be a service.  Thus, it is this Court=s finding that a telephone facsimile message complained of is explicitly covered by the TCPA, and Defendant=s ' 2-615 Motion to Dismiss Count I of the Complaint is denied.

In its ' 2-619 Motion to Dismiss Count I of the Complaint, Defendant contends that the legislative record suggests Congress intended to have TCPA actions tried in small claims courts, thus this Court is not the proper forum for Plaintiff=s claim.  In support of its argument, Defendant refers to a comment made by Senator Hollings indicating a preference@ for small claims courts.

Defendant=s argument, however, is rejected for two reasons.  First, it is well established in Illinois that where the plain language of a statute is clear, reference to the legislative record is unnecessary.  Krohe v. City of Bloomington, 204 Ill. 2d 392, 395 (2003).  There is nothing in the language of the TCPA indicating this cause of action belongs in small claims courts, and Defendant fails to point out any ambiguity requiring this Court to resort to the legislative record.  Second, Senator Hollings= comment, taken in context, does not refer to class action suits, such as the case at bar.  His comment suggests a mere preference@ for suits involving individual plaintiffs, and in no way represents the will of Congress in crafting the TCPA.

Next, Defendant cites Illinois Supreme Court Rule 281, arguing that because the remedy in this case amounts to less than $5,000, this action belongs in small claims court.  Defendant=s calculation, however, fails to account for the class action nature of this suit.  The language of ' 227(b)(3)(B) of the TCPA provides, in pertinent part, that a plaintiff is entitled Ato receive $500 in damages for each such violation.@  47 U.S.C. ' 227(b)(3)(B) (emphasis added).  Plaintiff alleges at least fifty (50) violations of the TCPA, amount to well over $5,000.  Thus, Defendant=s ' 2-619 Motion to Dismiss Count I of the Complaint is denied.

Finally, in its ' 2-615 Motion to Dismiss Count II of the Complaint, Defendant contends that because damages in Plaintiff=s conversion claim amount to less than $1.00, this Court should dismiss that claim under the doctrine of de minimus no curat lex.  Once again, however, Defendant fails to recognize the class action nature of this suit.  With at least fifty (50) allegations, Plaintiff=s conversion claim will likely amount to much more than Defendant predicts.  Thus, Defendant=s ' 2-619 Motion to Dismiss Count II of the Complaint is denied.