1. Plaintiff James L. Orrington, II, D.D.S., P.C., brings this action to secure redress for the actions of defendant Mesa Laboratories, Inc., in sending or causing the sending of unsolicited advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”),  the Illinois Consumer Fraud Act, 815 ILCS 505/2 (“ICFA”), and the common law.  10. Discovery may reveal the transmission of additional faxes as well. 2  11. Defendant Mesa Laboratories, Inc. as the entity who products or services were advertised  in the fax, derived economic benefit from the sending of the fax.  12.      Defendant Mesa Laboratories, Inc.  is responsible for sending or causing the sending of the fax.  13. Defendant Mesa Laboratories, Inc. as the entity who products or services were advertised  in the fax, derived economic benefit from the sending of the fax.  14. Defendant Mesa Laboratories, Inc either negligently or wilfully violated the rights of plaintiff and other recipients in sending the faxes.   15.       Plaintiff had no prior relationship with defendant and had not authorized the sending of fax advertisements to plaintiff.  16. The fax does not contain an “opt out” notice that complies with 47 U.S.C. §227.  17. On information and belief, the fax attached hereto was sent as part of a mass broadcasting of faxes.  It is a generic fax, not specifically addressed to any person.  18. The TCPA provides for affirmative defenses of consent or an established business relationship.  Both defenses are conditioned on the provision of an opt out notice that complies with the TCPA.  Holtzman v. Turza, 728 F.3d 682 (7th Cir. 2013); Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013).   19. On information and belief, defendant has transmitted similar unsolicited fax advertisements to at least 40 other persons in Illinois.  2. The TCPA expressly prohibits unsolicited fax advertising.  Unsolicited fax advertising damages the recipients.  The recipient is deprived of its paper and ink or toner and the use of its fax machine.  The recipient also wastes valuable time it would have spent on something else.  Unsolicited faxes prevent fax machines from receiving and sending authorized faxes, cause wear and tear on fax machines, and require labor to attempt to identify the source and purpose of 1 the unsolicited faxes. 20. There is no reasonable means for plaintiff or other recipients of defendant’s unsolicited advertising faxes to avoid receiving illegal faxes.  Fax machines must be left on and ready to receive the urgent communications authorized by their owners. 3 21. Plaintiff incorporates ¶¶ 1-20.   22. The TCPA makes unlawful the “use of any telephone facsimile machine,  computer or other device to send an unsolicited advertisement to a telephone facsimile machine ...” 47 U.S.C. §227(b)(1)(C).  23. The TCPA,  47 U.S.C. §227(b)(3), provides: Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State– (A)  an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B)  an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C)  both such actions. If the Court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under the subparagraph (B) of this paragraph.  24. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes, in the form of paper and ink or toner consumed as a result.  Furthermore, plaintiff’s statutory right of privacy was invaded.  25. Plaintiff and each class member is entitled to statutory damages.  26. Defendant violated the TCPA even if its actions were only negligent.  27. Defendant should be enjoined from committing similar violations in the future. 4 36. Plaintiff incorporates ¶¶ 1-20.  37. Defendant engaged in unfair acts and practices, in violation of ICFA § 2, 815 ILCS 505/2, by sending unsolicited fax advertising to plaintiff and others.  38. Unsolicited fax advertising is contrary to the TCPA and also Illinois law.  720 ILCS 5/26-3(b) makes it a petty offense to transmit unsolicited fax advertisements to Illinois residents.  39. Defendant engaged in an unfair practice and an unfair method of competition by engaging in conduct that is contrary to public policy, unscrupulous, and caused injury to recipients of their advertising.  40. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes, in the form of paper and ink or toner consumed as a result.   41. Defendant engaged in such conduct in the course of trade and commerce.  42. Defendant’s conduct caused recipients of their advertising to bear the cost thereof. This gave defendant an unfair competitive advantage over businesses that advertise lawfully, such as by direct mail.  For example, an advertising campaign targeting one million recipients would cost $500,000 if sent by U.S. mail but only $20,000 if done by fax broadcasting.  The reason is that instead of spending $480,000 on printing and mailing his ad, the fax broadcaster misappropriates the recipients’ paper and ink.  “Receiving a junk fax is like  getting junk mail with the postage due”.   Remarks of Cong. Edward Markey, 135 Cong Rec E 2549, Tuesday, July 18, 1989, 101st Cong. 1st Sess.  43. Defendant’s shifting of advertising costs to plaintiff and the class members in this 8 manner makes such practice unfair.  In addition, defendant’s conduct was contrary to public policy, as established by the TCPA and Illinois statutory and common law.  44. Defendant should be enjoined from committing similar violations in the future. 52. Plaintiff incorporates ¶¶ 1-20.  53. By sending plaintiff and the class members unsolicited faxes, defendant converted to its own use ink or toner and paper belonging to plaintiff and the class members.  54. Immediately prior to the sending of the unsolicited faxes, plaintiff and the class members owned and had an unqualified and immediate right to the possession of the paper and ink or toner used to print the faxes.  55. By sending the unsolicited faxes, defendants appropriated to their own use the paper and ink or toner used to print the faxes and used them in such manner as to make them unusable.  Such appropriation was wrongful and without authorization.    56. Defendant knew or should have known that such appropriation of the paper and ink or toner was wrongful and without authorization.   57. Plaintiff and the class members were deprived of the paper and ink or toner,  which could no longer be used for any other purpose.   Plaintiff and each class member thereby suffered damages as a result of receipt of the unsolicited faxes.  58. Defendant should be enjoined from committing similar violations in the future. 76. Plaintiff incorporates ¶¶ 1-20.   77. Defendant’s sending plaintiff and the class members unsolicited faxes was an unreasonable invasion of the property of plaintiff and the class members and constitutes a nuisance.  78. Congress determined, in enacting the TCPA, that the prohibited conduct was a “nuisance.”  Universal Underwriters Ins. Co. v. Lou Fusz Automotive Network, Inc., 401 F.3d 876, 882 (8th Cir. 2005).  79. Defendant acted either intentionally or negligently in creating the nuisance.  80. Plaintiff and each class member suffered damages as a result of receipt of the 13 unsolicited faxes.  81. Defendant should be enjoined from continuing its nuisance. 89. Plaintiff incorporates ¶¶ 1-20.   9. On December 08, 2017,  James L. Orrington, II, D.D.S., P.C., received an  unsolicited fax advertisement attached as Exhibit A on its facsimile machine.  The fax provided the name and address and telephone number of defendant Mesa Laboratories, Inc.  90. Plaintiff and the class members were entitled to possession of the equipment they used to receive faxes.  91. Defendant’s sending plaintiff and the class members unsolicited faxes interfered with their use of the receiving equipment and constitutes a trespass to such equipment.  Chair King v. Houston Cellular, 95cv1066, 1995 WL 1693093 at *2 (S.D. Tex. Nov. 7, 1995) (denying a motion to dismiss with respect to plaintiff's trespass to chattels claim for unsolicited faxes), vacated on jurisdictional grounds 131 F.3d 507 (5th Cir. 1997).  92. Defendant acted either intentionally or negligently in engaging in such conduct.  93. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes.  94. Defendant should be enjoined from continuing trespasses. 95. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), plaintiff brings this claim on behalf of  a class, consisting of (a) all persons with Illinois fax numbers (b) who, on or after a date five years prior to the filing of this action,  (c) were sent faxes by or on behalf of defendant Mesa Labotories, promoting its goods or services for sale (d) which did not contain a compliant opt out notice.  By “compliant opt out notice” is meant one (i) on the first page of the fax (ii) that states that the recipient may make a request to the sender not to send any future unsolicited advertisements to a telephone facsimile machine (iii) that states that failure to comply, within the shortest reasonable time, as determined by the Federal Communications Commission, is 16 unlawful; (iv) that provides instructions on how to submit an opt out request and (v)  that  includes  a domestic contact telephone and facsimile machine number and a cost-free mechanism for the recipient to transmit such a request to the sender that permit a request to be made at any time on any day of the week.  96. The class is so numerous that joinder of all members is impractical.  Plaintiff alleges on information and belief that there are more than 40 members of the class.  97. There are questions of law and fact common to the class that predominate over  any questions affecting only individual class members.  The predominant common questions include: a.  Whether defendant engaged in a pattern of sending unsolicited fax advertisements; b.  Whether defendant thereby committed a trespass to chattels.  98. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff has retained counsel experienced in handling class actions and claims involving unlawful business practices.  Neither plaintiff nor plaintiff’s counsel have any interests which might cause them not to vigorously pursue this action.   99. Plaintiff’s claims are typical of the claims of the class members.  All are based on   the same factual and legal theories. 100. A class action is the superior method for the fair and efficient adjudication of this controversy.  The interest of class members in individually controlling the prosecution of separate claims against defendant is small because it is not economically feasible to bring individual actions. 17 101. Management of this class action is likely to present significantly fewer difficulties that those presented in many class actions, e.g. for securities fraud. WHEREFORE, plaintiff requests that the Court enter judgment in favor of plaintiff and the class and against defendant for: a.  Appropriate damages; b. An injunction against the further transmission of unsolicited fax advertising; c. Costs of suit; d. Such other or further relief as the Court deems just and proper. /s/ Daniel A. Edelman Daniel A. Edelman Daniel A. Edelman Cathleen M. Combs James O. Latturner Dulijaza Clark INTRODUCTION 