1. Plaintiff Glen Ellyn Pharmacy, Inc., brings this action to secure redress for the actions of defendant Attix Pharmaceutical USA, LLC, 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.   11. Defendant Attix Pharmaceutical USA, LLC, is responsible for sending or causing the sending of the faxes.  12. Defendant Attix Pharmaceutical USA, LLC, as the entity whose products or services were advertised in the faxes, derived economic benefit from the sending of the faxes.  13. Defendant Attix Pharmaceutical USA, LLC, either negligently or wilfully violated the rights of plaintiff and other recipients in sending the faxes.  14. Each fax refers to a website registered to defendant Attix Pharmaceutical 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 the unsolicited faxes. 20. Plaintiff incorporates ¶¶ 1-18.   21. 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).  22. 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 4 this paragraph.  23. 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.  24. Plaintiff and each class member is entitled to statutory damages.  25. Defendants violated the TCPA even if their actions were only negligent.  26. Defendants should be enjoined from committing similar violations in the future. 35. Plaintiff incorporates ¶¶ 1-18.   36. Defendants engaged in unfair acts and practices, in violation of ICFA § 2, 815 ILCS 505/2, by sending unsolicited fax advertising to plaintiff and others.  37. 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.  38. Defendants engaged in an unfair practice by engaging in conduct that is contrary to public policy, unscrupulous, and caused injury to recipients of their advertising.  39. 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.   40. Defendants engaged in such conduct in the course of trade and commerce.  41. Defendants’ conduct caused recipients of their advertising to bear the cost thereof.  This gave defendants 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.  42. Defendants’ shifting of advertising costs to plaintiff and the class members 7 in this manner makes such practice unfair.  In addition, defendants’ conduct was contrary to public policy, as established by the TCPA and Illinois statutory and common law.  43. Defendants should be enjoined from committing similar violations in the future. 51. Plaintiff incorporates ¶¶ 1-18.   52. By sending plaintiff and the class members unsolicited faxes, defendants converted to their own use ink or toner and paper belonging to plaintiff and the class members.  53. 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.  54. 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.   9  55. Defendants knew or should have known that such  appropriation of the paper and ink or toner was wrongful and without authorization.   56. 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.  57. Defendants should be enjoined from committing similar violations in the future. 58. 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 and/or entities with Illinois fax numbers (b) who, on or after a date five years prior to the filing of this action, or such shorter period during which faxes were sent by or on behalf of defendant Attix Pharmaceutical USA, LLC, and on or before a date 20 days following the filing of this action, (c) were sent faxes by or on behalf of defendant Attix Pharmaceutical USA, LLC, promoting its goods or services for sale (d)that do not contain an opt out notice.  59. 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.  60. 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 defendants engaged in a pattern of sending unsolicited fax advertisements; b.  Whether defendants thereby violated the TCPA; c.  Whether defendants thereby committed the tort of conversion; d.  Whether defendants thereby engaged in unfair acts and practices, in violation of the ICFA. 10 e.  Whether defendants thereby converted the property of plaintiff.  61. 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.   62.  Plaintiff’s claims are typical of the claims of the class members.  All are based on the same factual and legal theories.  63. 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 defendants is small because it is not economically feasible to bring individual actions.  64. 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 defendants 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. 11 /s/ Daniel A. Edelman Daniel A. Edelman Daniel A. Edelman Michelle R. Teggelaar Julie Clark Heather A. Kolbus 9. On June 21, 2011, plaintiff Glen Ellyn Pharmacy, Inc.,  received the unsolicited fax advertisement attached as Exhibit A on its facsimile machine.  INTRODUCTION 