Physicians Healthsource, Inc. v. Allscripts Health Solutions, Inc. (254 F. Supp. 3d 1007, 2017)

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

“Plaintiff is a professional class-action plaintiff who regularly works with [Law Firm of] Anderson & Wanca to file TCPA cases.” Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, 2014 WL 7366255, at *7 (S.D. Fla. 2014). The plaintiff has moved for certification of this “junk fax” case as a class action under Fed.R.Civ.P. 23(a) and 23(b)(3). Denial of class certification and of a finding that the plaintiff and/or its counsel is not appropriate is reviewed for an abuse of discretion. Gomez v. St Vincent Health, Inc., 649 F.3d 583, 591 (7th Cir. 2011). Thus, review is deferential, but not abject. CE Design, Ltd., 637 F.3d at 723.

The defendants have objected to certification and have filed a cross-motion for summary judgment, submitting that the plaintiff gave its express permission to send it faxes advertising defendants’ goods and services. The materials filed in connection with the motion for class certification total 1105 pages. At first blush, this seems not to bode well for what ought to be an uncomplicated showing of requisite class action elements like commonality, typicality, and predominance. The materials filed in connection with defendants’ summary judgment motion add up to about the same: 1166 pages. Likewise, it is somewhat counterintuitive (although by no means conclusive) that there is no genuine issue of fact in those lengthy materials, especially when the question presented seems so basic: did the plaintiff give the statutorily required permission to the defendants to fax it advertisements.

To complicate things even more (due in large measure to the presentation of the defendants), the two motions are inextricably intertwined, making review of the parties’ arguments and evidence difficult. Time-honored warnings, such as the im-permissibility of asking a judge to play archaeologist with the record, Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724, 731 (7th Cir. 2014), or hunt for truffles buried in briefs, Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015), come to mind. The Seventh Circuit’s advice in Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir. 2006) that counsel for both sides should endeavor to make it easier for the court to rule in their client’s favor — does not.

We turn to the motion for class certification.

I.

BACKGROUND

The plaintiff filed this suit five years ago under the Telephone Consumer Protection Act (“TCPA”), 47 USC § 227, which prohibits any person from sending unsolicited fax advertisements, unless the sender has an established business relationship with the recipient, the sender obtained the fax number through voluntary communication or a directory, and the fax includes an opt-out notice meeting certain statutory requirements. 47 USC § 227(b)(1)(C). The statute defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5). Federal regulations define “established business relationship” as:

a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.

47 C.F.R. § 64.1200(f)(6).

Opt-out notices are also required for faxes sent with the recipient’s permission. Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013). The provision covering opt-out notices requires that the notice be “clear and conspicuous. and on the first page” of the advertisement, state that the recipient can make a request that the sender not send any further unsolicited advertisements, and include a cost-free phone or fax number to which the recipient can communicate its request. 47 U.S.C. § 277(b)(2)(D). For one reason or another, the faxes at issue here do not comply with the opt-out notice requirements. [Dkt. # 204-1, at 18-19].

The potential monkey wrench is that in August of 2015, three years after the suit was filed, the defendants sought and obtained from the F.C.C. a retroactive waiver of the requirement that even faxes sent with permission have an opt-out notice. The parties are at odds over whether that waiver applies to civil litigation (or simply FCC enforcement proceedings) and whether it trumps Seventh Circuit precedent in which our Court of Appeals has said “[e]ven when the Act permits fax ads — as it does to persons who have consented to receive them, or to those who have established business relations with the sender— the fax must tell the recipient how to stop receiving future messages.” Turza, 728 F.3d at 683.

Recently, the Court of Appeals for the D.C. Circuit vacated the FCC’s 2006 Solicited Fax Rule and held that “the"... Rule is ... unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. F.C.C., 852 F.3d 1078, 1079 (D.C. Cir. 2017). The Seventh Circuit’s holding in Turza, however, did not even mention the FCC rule, but relied exclusively on the statute, itself, when it said that opt-out notices are required on solicited faxes. See 728 F.3d at 683 (“Even when the Act permits fax ads — as it does to persons who have consented to receive them, or to those who have established business relations with the sender — the fax must tell the recipient how to stop receiving future messages. 47 U.S.C. § 227(b)(1)(C)(iii), (2)(D)”). Given the institutional hierarchy of the federal courts, we are bound to follow Turza, not Bais Yaakov. See Hays v. United States, 397 F.3d 564, 567 (7th Cir. 2005); United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994). See also United States v. Castro-Portillo, 211 Fed.Appx. 715, 722 (10th Cir. 2007); Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir. 1999).

II.

FACTS OF THE CASE

On its surface, the suit is about plaintiffs claim that defendants violated the Act by sending it anywhere from 32 to 36 faxes [Dkt. #204-1, at 2-3]; plaintiffs claims vary throughout the case and even in its motion for certification. The faxes were sent between July 2008 and December 2011, on an average of about once a month. [Dkt. # 204, Page 2/3]. But when the surface is scratched, this case is perhaps something of a continuation of a discovery dispute from a case that has been settled, Geismann v. Allscripts-Misy’s Healthcare Solutions, Inc., 09 CV 5114, liberally seasoned with some leftover animosity between the parties and especially between their counsel.

That much is clear from the opening paragraph of the Complaint, which alleges that, in the previous case, the defendants withheld the 32 faxes at issue now, thereby, it is alleged, perpetrating a “fraud ... upon the [plaintiffs] and [Magistrate] Judge Young B. Kim who presided over the case.” [Dkt. # 78, ¶ 1]. If the defendants have it right, the plaintiff could have filed a motion to vacate the final approval order in that case under Fed.R.Civ.P. 60(b)(3). Or, it could have asked for other relief against the defendants and their counsel. But the plaintiffs lawyers chose instead to file another junk fax case. That is a strategic decision — by which it is bound. Crowe ex rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 444 (7th Cir. 2011); Abbott Laboratories v. Takeda Pharmaceutical Co. Ltd., 476 F.3d 421 (7th Cir. 2007). In any event, it is not productive to attempt to recreate now what happened in discovery in another case years earlier. Nor is it necessary.

The Complaint, which appears to be based on earlier Complaints in other cases, is premised on a view of junk faxes that in a certain respect harkens back to a less sophisticated era — although one which has not fallen totally into desuetude. It alleges that:

[ujnsolicited faxes damage their recipients. A junk fax recipient loses the use of his fax machine, paper, and ink toner. An unsolicited fax wastes the recipient’s valuable time that would have been spent on something else. A junk fax interrupts the recipient’s privacy. Unsolicited faxes prevent fax machines from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue wear and tear on the recipients’ fax machines, and require additional labor to attempt to discern the source and purpose of the unsolicited message. A junk fax consumes a portion of the limited capacity of the telecommunications infrastructure serving the • victims of junk faxing.

[Dkt. # 78, ¶ 3].

This preamble to the Complaint recalls the original statement of legislative intent from a quarter century ago. See S. REP. 102-177, 20 (Oct. 8, 1991). But, much has changed since 1991. Even on a traditional fax machine, the cost to receive a fax in terms of ink and paper is about 2 cents. Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 941 (7th Cir. 2016)(“Fax paper and ink were once expensive, and this may be why Congress enacted the TCP A, but they are not costly today.”); Yuri R. Linetsky, Protection of “Innocent Lawbreakers”: Striking the Right Balance in the Private Enforcement of the Anti “Junk Fax” Provisions of the Telephone Consumer Protection Act, 90 Neb. L. Rev. 70, 84 (2011).

That makes—it could be argued—the monetary damages to the plaintiff here about 72 cents. [Dkt. # 1, ¶ 11, Dkt. # 1-2, Pages 2-37/37], And, of course, it is easy to throw a traditional fax, like a piece of junk mail, in the trash. Am. States Ins. Co. v. Capital Associates of Jackson Cty., Inc., 392 F.3d 939, 942 (7th Cir. 2004). But even that view of junk faxes is outdated as the traditional fax machine goes the way of the dinosaur. Most faxes are now received on computer fax servers that allow the recipient to view faxes on their computer and decide whether or not to print the document, reducing the cost to essentially zero. Linetsky, 90 Neb. L. Rev. at 85. A recipient’s seclusion — not so much privacy— might be disturbed by the whir of a traditional fax machine, like the jangling of a telephone, but the computer fax server has even eliminated or significantly reduced that concern. Am. States, 392 F.3d at 942.

But, even if the above is correct, we are not át liberty to disregard the will of the Congress. “While a statute remains on the books ... it must be enforced rather than subverted.” Murray v. GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir. 2006). A judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921). “Disagreement with congressional policy” is not permitted, United States v. Goldberg, 491 F.3d 668, 673 (7th Cir. 2007), and a judge is not entitled to override Congress’s contrary view. See Patterson v. Shumate, 504 U.S. 753, 759, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992); Fed. Deposit Ins. Corp. v. Philadelphia Gear Corp., 476 U.S. 426, 441, 106 S.Ct. 1931, 90 L.Ed.2d 428 (1986); United States v. Roberson, 474 F.3d 432, 434 (7th Cir. 2007). Even in a junk fax case, the statute “is what it is.” Creative Montessori Learning Centers v. Ashford Gear LLC, 662 F.3d 913, 915 (7th Cir. 2011)(Posner, J.).

Still, one must wonder why the defendants continued to send the very type of junk faxes, at least to the plaintiff, that got them into such expensive difficulty in the first place. The defendants licensed medical billing software to the plaintiff; then-faxes, though, touted free beach towels and cookie jars with office supply orders. The settlement agreement in the prior case does not indicate the payout to the class, but the defendants had to pay plaintiffs counsel nearly $600,000 in attorney’s fees and expenses. [Geismann v. Allscripts-Misy’s Healthcare Solutions, Inc., 09 CV 5114; Dkt. # 142, ¶ 12], Remarkably, the defendants sent at least three of the faxes at issue here after it had reached terms in the Geisman case. [Dkt. # 78, ¶ 12; Geismann v. Allscripts-Misy’s Healthcare Solutions, Inc., 09 CV 5114; Dkt. # 130].

These types of faxes were sent in groups of 4,000 or 5,000, or 7,000 or 8,000 at a time. [Dkt. #204-5]. One might think a business that had just agreed to pay well over a half million dollars in legal fees, over and above monetary damages, would adjust its marketing strategy a bit. Or, at the very least, stop sending faxes to what might be one of the more litigious businesses, in terms of junk fax litigation, in the country.

Whatever efficacy faxes such as these might have, it’s hard to believe it’s worth the risk and cost of a junk fax suit. While the penalties for sending multiple faxes can get to be draconian as Judge Posner has observed, Creative Montessori Learning Centers, 662 F.3d at 915, damages per recipient pale in comparison to the attorney’s fees. Id. at 915-16. Damages under the Act are $500 or, at most, $1500 per fax if a violation is proven willful, and damages are trebled. 47 U.S.C. § 227(b)(3). Attorney’s fees to plaintiffs counsel can be infinitely more and constitute a significant threat to violators of the Act. The potential for attorney’s fees to a losing defendant under this “obscure statute,” can have an in-terrorem effect and result in a settlement of even a questionable case. Creative Montessori Learning Centers, 662 F.3d at 915-916. These cases are almost invariably brought as class actions, id. at even though the Act’s sponsor, Senator Hollings, contemplated that individuals would bring TCPA claims pro se in small claims court. That has proven to be an unrealized hope, and court after court agrees, generally without the need for extensive discussion, that “small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1047 (7th Cir. 2007).

This case is entering its sixth year, and its docket comprises over 7000 pages of entries. As already noted, the cross motions at issue here, alone, comprise more than 2200 pages. A satellite motion to strike, brings that figure toward 3000 pages. The cost to the taxpayers, who are, after all, in a fashion subsidizing the resolution of this dispute, is alreády significant and continues to grow. Yet, from the plaintiffs business perspective, all this is about two or three dozen faxes sent over the course of three and a half years — meaning the plaintiffs fax machine, if there was one, didn’t even “whir” at an average of once a month. And, as already noted, all of this was (allegedly) part and parcel of a case that settled more than four years ago for a great deal of money.

But, the statute is what it is and thus is to be enforced as Congress intended and not evaded by judicial action. See cases supra at 7.

III.

THE PUTATIVE CLASSES

Plaintiff hopes to certify two classes of fax recipients in this case: '

Class A — All persons or entities who were successfully sent one or more faxes stating: (1) “The Ten Second Stimulus Survey,” and were sent April 28, 2009, April 30, 2009, and May 7, 2009; (2) “Backup Tape Sale Purchase 5 backup tapes before May 29, 2009,” and were sent on May 19, 2009; (3) “EHR Stimulus Tour — Coming to Lexington KY,” and were sent on September 29, 2009, and October 6, 2009; (4) “You’re Invited Live Web Event with Glen Tullman,” and were sent on December 1, 2009; (5) “EHR Stimulus Tour — Coming to Indianapolis, IN,” and were sent on January 22, 2010, and February 1, 2010; (6) “Are You Feeling Lucky Win $105 in Copy Paper,” and were sent on March 4, 2010; (7) “Spring Savings when you order online,” and were sent on April 2, 2010; (8) ‘You’re Invited — Exclusive EHR Summit at ACE 2010,” and were sent on June 2, 2010; (9) “Have you ordered your 2011 Codebooks?”, and were sent on June 22, 2010; (10) “Take Me Out to the Ballgame,” and were sent on June 23, 2010; (11) “Free Webinar Allscripts Payerpath Denial Management,” and were sent on July 16, 2010; (12) “Alls-cripts You’re Invited Tiger/PM User Group Meeting and Opening Door to the Digital Office,” and were sent August 12, 2010; (13) “Allseripts End of Summer Special when you order online,” and were sent August 18, 2010; (14) “Alls-cripts How do I pay for an Electronic Health Record now when my Stimulus payments won’t come until later,” and were sent on September 21, 2010, October 14, 2010, and October 28, 2010; (15) “How Do I pay for an Electronic Health Record when my Stimulus payments won’t come until later,” and was sent on September 30, 2010; (16) “Allscripts Tiger EHR Enablement Program Exclusive Program for Tiger Clients,” and were sent on October 26, 2010, and November 30, 2010; (17) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2010,” and were sent December 2, 2010; (18) “Tiger EHR En-ablement Program,” and was sent on December 29, 2010; (19) “Allscripts would like to wish you a Happy Valentine’s Day and Give You a Free Gift,” and were sent on February 4, 2011; (20) “Allscripts Prepare for ICD-10-CM,” and were sent on March 23, 2011; (21) “Have you ordered your 2012 Code-books?,” and were sent on June 3, 2011; (22) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2011,” and were sent on November 1, 2011, and December 1, 2011; and (23) “Allseripts Paperless Year End,” and were sent on December 5, 2011; and (24) “New Customer Appreciation Copy Paper Special,” and were sent on January 6/7, 2010.

Class B — All persons or entities who were successfully sent one or more faxes stating: (1) “Backup Tape Sale Purchase 5 backup tapes before December 31, 2011,” and were sent on December 1, 2011; (2) “Allscripts Paperless Year End,” and were sent on December 5, 2011; and (3) “New Customer Appreciation Copy Paper Special,” and were sent on January 6/7, 2010.

[Dkt. # 204-1, at 3].

The three Class B faxes are faxes 22, 23, and 24 in Class A. Plaintiff explains that there are two classes because it has transmission logs for the three faxes in Class B, and invoices from Westfax, the company that defendants engaged to send faxes on its behalf, for the other 29. West-fax, the plaintiff tells us through the testimony of Westfax’s president, only sends invoices for successful broadcasts. [Dkt. #204-1, at 6; #204-9 Clark Dep., at 28-29]. Mr. Clark testified that they bill their customers by “successful page” and that the defendants received a “detailed report” “indicating] whether or not each fax was successful or not....” [Dkt. #204-9 Clark Dep., at 29-29]. The invoices reveal thousands of faxes were sent. For exam-pie, the very first invoice states that the broadcast quantity was 5,113. [Dkt. # 204-5, at 2/257]. Plaintiffs calculations put the overall numbers at 134,357 for Class A and 17,781 for Class B. [Dkt. # 215, at 13].

Defendants complain that the Westfax invoices don’t indicate to whom the faxes were sent — that’s true—which would seem like a strike against ascertain-ability. A class has to be clearly defined and based on objective criteria. Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015). While some Circuits demand more, the Seventh Circuit has rejected any more stringent a requirement than that. Id. The defendants didn’t keep records of their faxing, and the Seventh Circuit has explained that “refusing to certify on th[e] basis [of ascertainability] effectively immunizes defendants from liability because they chose not to maintain records of the relevant transactions.” Id. at 668; see also Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 250 (N.D. Ill. 2014)(“Doing this — or declining to certify a class altogether, as defendants propose — would create an incentive for a person to violate the TCPA on a mass scale and keep no records of its activity, knowing that it could avoid legal responsibility for the full scope of its illegal conduct.”).

This is not to say that there will not be problems down the line, but' they will be addressed to the extent allowed by the parties’ submissions in the context of manageability. In the end, however, when a class is certified in junk fax cases, it’s up to the plaintiff and class counsel to come up with details on management of the case or face decertification. Mullins, 795 F.3d at 664.

A class may be certified only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011)(em-phasis supplied). Accord Montessori Learning Centers, 662 F.3d at 916; CE Design Ltd., 637 F.3d at 723. It must be remembered that certification of class action can coerce a defendant into settling on highly disadvantageous terms regardless of the merits of the suit. That is because the TCPA makes violators strictly liable for “cumulatively very heavy statutory penalties,” CE Design Ltd., 637 F.3d at 723, and “defendants may [consequently] well be forced—even if they have a strong case on the merits—to settle to avoid the risk of a catastrophic judgment.” Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 492 (7th Cir. 2014).

Class certification requires the plaintiff to show, by a preponderance of the evidence, that four requirements of Fed. R.Civ.P. 23(a) are met:

(1) the class is so numerous that join-der of all members is impracticable (nu-merosity);

(2) there are questions of law or fact common to the class (commonality);

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and

(4) the representative parties will fairly and adequately protect the interests of the class (adequacy of representation).

Fed.R.Civ.P. 23(a); Steimel v. Wernert, 823 F.3d 902, 917 (7th Cir. 2016); Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 373 (7th Cir. 2015). In addition to meeting these requirements, the class must satisfy one of the four conditions in Fed.R.Civ.P. 23(b). Bell, 800 F.3d at 373.

In this case, the plaintiff seeks certification under Fed.R.Civ.P. 23(b)(3), which applies to class actions when the purported class seeks monetary damages. The rule allows for class certification when “questions of law or fact common to the class members predominate over any questions affecting individual members,” and when a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R.Civ.P. 23(b)(3); Bell, 800 F.3d at 373. Predominance is similar to Rule 23(a)’s requirements for typicality and commonality, but the predominance criterion is far more demanding. McCaster v. Darden Restaurants, Inc., 845 F.3d 794, 800 (7th Cir. 2017). The need for rigorous analysis of a motion to certify a class is for the protection not of the defendants alone, but of the class members as well. CE Design Ltd., 637 F.3d at 723.

A.

Numerosity

There is no dispute that plaintiff satisfies the numerosity requirement. [Dkt. #215, at 14-16], Defendants have admitted that they sent the 36 faxes plaintiff attached to their Complaint to the plaintiffs fax number. At the very least, the plaintiffs evidence — unchallenged by the defendants — shows that defendants sent faxes to over 17,000 fax numbers in Class B. [Dkt. # 204-1, at 9]. Well over 100,000 faxes were sent in Class A. As such, even without an exact determination of size, “it’s reasonable to believe it large enough to make joinder impracticable and thus justify a class action suit.” Arnold Chapman & Paldo Sign & Display Co., 747 F.3d at 492. Whether the class members actually have valid claims is a matter for another day. Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014).

B.

Commonality

The Supreme Court has explained that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury’ ” at the hands of the same defendant. Wal-Mart Stores, Inc., 564 U.S. at 349-50, 131 S.Ct. 2541; McCaster, 845 F.3d at 800. “It’s not enough for the plaintiffs to show that class members have all suffered a violation of the same provision of law.” Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541; McCaster, 845 F.3d at 800. “Instead they must show that ‘the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members.’” McCaster, 845 F.3d at 800. Conduct common to members of the class is critical; the class members’ claims must depend on a common contention that is “capable of classwide resolution.” Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541: McCaster, 845 F.3d at 800.

Class- certification is common in TCPA litigation because the main questions, such as whether a given fax is an advertisement, are common to all recipients. Turza, 728 F.3d at 684. “[F]or purposes of Rule 23(a)(2) ‘[e]ven a single [common] question’ will do.” Wal-Mart, 564 U.S. at 359, 131 S.Ct. 2541. Here, the plaintiff submits there are four questions common to all fax recipients: whether the faxes are advertisements; whether each defendant is a sender, whether opt-out notices comply with 47 CFR § 64.1200(a)(4)(iii); and whether the defendants willfully or knowingly violated the TCPA such that treble damages are available. [Dkt. #204-1, at 12]. In its reply brief, it adds the question of whether the FCC can grant a retroactive waiver of the opt-out notice requirement that applies to litigation between parties. The plaintiff submits that “[t]hese questions can be answered classwide, and doing so will resolve the entire case.... ” [Dkt. # 204-1, at 12].

While answering these questions will not resolve the entire case — there are the matters of express permission and established business relationship — those two points do not scuttle commonality. As already noted, just a single common question will suffice. Wal-Mart, 564 U.S. at 359, 131 S.Ct. 2541. The questions plaintiff submits are clearly capable of classwide resolution. The recipients received the same faxes, and so the questions of whether the fax was an advertisement, who the sender was, whether the fax contains a proper opt-out notice, are all common questions. The same is true of whether defendants acted intentionally and whether the defendants’ waiver is applicable here.

The defendants do not really make a serious challenge to plaintiffs commonality showing. They argue that plaintiffs claims are not common to the class because plaintiff may not even have been the intended recipient of some of the faxes. Brodsky v. HumanaDental Ins. Co., 2014 WL 2780089 (N.D. Ill. June 12, 2014). [Dkt. #215, at 15] is relied on. But oddly and inexplicably defendants overlooked the fact that Brod-sky reconsidered its statement that a plaintiff could not recover unless he was the intended recipient of the fax. See Brodsky v. HumanaDental Ins. Co., 2014 WL 4813147 (N.D. Ill. Sept. 29, 2014). In the wake of the Seventh Circuit’s holding in Chapman v. Wagener Equities, Inc., 747 F.3d 489, 491 (7th Cir. 2014), the district court determined that all that mattered was whether the plaintiff was the owner of the fax machine; whether the fax number was his. 2014 WL 4813147, at 3.

C.

Typicality

The typicality requirement “primarily directs the district court to focus on whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). Typicality requires “enough congruence between the named representative’s claim and that of the unnamed members of the class to justify allowing the named party to ligate on behalf of the group.” Spano v. The Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011). “Even though some factual variations may not defeat typicality, the requirement is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large.” Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006). Thus, where a representative’s claim “involves facts that distinguish [the plaintiffs] claim from the claims of ... fellow class members,” typicality is lacking. Muro, 580 F.3d at 492.

Here, the plaintiffs claims are typical of the class. It received the enumerated, unwanted faxes from the defendants at its fax machine number. The claim is that the defendants acted the same way as to all putative class members. See Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996)(“Typicality under Rule 23(a)(3) should be determined with reference to the company’s actions, not with respect to particularized defenses it might have against certain class members.”). Defendants’ only argument against typicality is the same one they raised against commonality: that other individuals were authorized to receive faxes at plaintiffs number. [Dkt. #215, at 15-16]. But that argument is unavailing, as it was in the context of commonality. As such, it is appropriate to move on the much more controversial issue of adequacy of representation. See CE Design Ltd., 637 F.3d at 724-25 (“In light of the statement in Wagner v. NutraSweet Co., ... that ‘typicality under Rule 23(a)(3) should be determined with reference to the company’s actions, not with respect to particularized defenses it might have against certain class members, we’ll focus our analysis on adequacy.’ ”). This is where the plaintiff motion for class certification runs aground.

D.

Adequacy of Representation

1.

Often, the requirement of typicality merges with the further requirement that the class representative “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4); CE Design Ltd., 637 F.3d at 724-25; Creative Montessori, supra. In this case, there are some red flags that require a close look. First, a plaintiff can’t be an adequate representative of the class if the plaintiff is subject to a defense that couldn’t be sustained against other class members. “ ‘The fear is that the named plaintiff will become distracted by the presence of a possible defense applicable only to him so that the representation of the rest of the class will suffer.’” CE Design, 637 F.3d at 726; Koos v. First Nat. Bank of Peoria, 496 F.2d 1162, 1164 (7th Cir. 1974)(“Where it is predictable that a major focus of the litigation will be on an arguable defense unique to the named plaintiff or a small subclass, then the named plaintiff is not a proper class representative.”).

Second, “[a] named plaintiff who has serious credibility problems or who is likely to devote too much attention to rebutting an individual defense may not be an adequate class representative.” CE Design, 637 F.3d at 726. The credibility problem often bears on an issue in the case. Id. at 724 (credibility of testimony regarding consent arising from permission to publish his company’s name and fax number in an industry “Blue Book” used to facilitate marketing among subscribers); Schleicher v. Wendt, 2009 WL 761157, at *3 (S.D. Ind. Mar. 20, 2009)(Hamilton, J.)(“... a criminal fraud conviction is extremely troubling for someone who seeks to serve as a fiduciary for absent class members asserting they are the victims of a fraudulent scheme.”), affirmed on other grounds, 618 F.3d 679 (7th Cir. 2010).

In Creative Montessori, supra, Judge Posner, speaking for a unanimous panel, rejected the notion that only the most egregious misconduct of counsel should require denial of class certification because of inadequate representation. 662 F.3d at 918-19. If taken literally, as the district judge in Creative Montessori did, it would condone unethical conduct and incentivize it. Thus, the panel held that once a major ethical violation had occurred, it should place on class counsel a heavy burden of showing that they are adequate representatives of the class. Id. at 919. The court held that while there was reason to doubt that class counsel would adequately represent the class, it returned the case to the district court to conduct the necessary review under the proper test.

This does not mean that defendants are invited “to try to derail legitimate class actions by conjuring up trivial credibility problems or insubstantial defenses unique to the class representative serious challenges to typicality and adequacy must be distinguished from petty issues manufactured by defendants to distract the judge • from his or her proper focus un Rule 23(a)(3) and (4) on the interests of the class....” CE Design Ltd., 637 F.3d at 728. In this case, the plaintiff has serious credibility problems regarding the two defenses arguably in play: permission and established business relationship. Even if a plaintiff denies the charges against it that denial alone does not settle the issues in its favor. Saying so doesn’t make it so. United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010). Here, the plaintiff was forced to admit the falsity of numerous interrogatory answers.

Indeed, judges are not obligated to abandon their common sense and ordinary human experiences when they come to the bench. Cf. United States v Montoya De Hernandez, 473 U.S. 531, 542, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985); Barclay v. Florida, 463 U.S. 939, 950, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983); United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989)(that fact finders may properly “ ‘use their common sense’” and “‘evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings.’ ”). Junk fax cases are not an exception to this rule. See CE Design Ltd., 637 F.3d at 726 (“Pezl’s testimony that he was unaware that he had authorized publication of CE’s fax number in the Blue Book is both difficult to credit, as the district judge acknowledged and, if disbelieved, could be thought evidence of Pezl’s fearing that the publication of CE’s fax number could indeed be construed as permission to fax ads to that number.”).

2.

We begin with plaintiffs discovery responses regarding the defense of an established business relationship. As it turns out, the responses were false. Even taken in a light most favorable to the plaintiff, the plaintiff was recklessly indifferent to the truth. Truthfulness in litigation, on a “key question” in the case is an “important issue in deciding whether [one] is a proper representative - of the class.... ” CE Design Ltd., 637 F.3d at 724. See also id. at 725. “A named plaintiff who has serious credibility problems or who is- likely to devote too much attention to rebutting an individual defense may not be an adequate class representative.” Id. at 726.

When requested to admit that it was a customer of defendants, the plaintiff denied it, and went on to assert — although not asked — it was a customer of Misys Healthcare System. [Dkt. #214-7, at 9]. That formulaic, unresponsive answer to the specific request was obviously intentional. For example, responding to the second set of requests to admit, when asked if it sent a fax to defendants on March 27, 2009, the plaintiffs response was: Denied. But it did not end there. The plaintiff then went on to add, “Plaintiff was a customer of Misys Healthcare System.” [Dkt. # 214-8, at 3/9]. And, as we have said, it responded in this fashion regardless of the question. It did not matter if all that was asked was its fax number, its account number, or about order forms [Dkt. # 214-8, at 3,5/9]. It gave the above premeditated, false answer. If the plaintiff is to be believed, the false answers were fashioned by the lawyers despite their lengthy experience representing the plaintiff in other eases (see n. 3) and despite the plaintiffs lawyers in this case, having admitted (on behalf of the same plaintiff in another case), that the plaintiff sold vitamins. Yet, for example, in the answer to the interrogatory about the sale of vitamins Dr. Ruch denied his company sold vitamins. Of course that was not true, and at the deposition, Dr. Ruch was forced to admit “[w]ell, we do for sure” sell vitamins. [Dkt. # 227, Ex. F at 192], Even though he had to have known the answer (like so many others) was false, he gave the false answer under oath. Initially he testified that he read the answers that were given to him, as prepared by his lawyers supposedly without his input. [Dkt. 227-9 at 190]. When pressed by defense counsel, he claimed he didn’t recall if he was supposed to confirm the facts to which he was sharing under oath. Id. After all, he said, he didn’t know whose responsibility it was to do that. When that proved an unconvincing dodge and he was'forced to concede that many of the answers to the interrogatories that he reviewed were false, he blithely sought to account for the falsity of many of the answers he ultimately admitted having reviewed, by saying said he just “didn’t really think too much about it.” [Id. at 205].

At his deposition, Dr. Elwert, one of plaintiffs principals, eventually conceded plaintiff had an account number with defendants, contradicting plaintiffs repeated and intentional discovery responses. [Dkt. # 214-3, Elwert Dep. (11/10/2015), at 244], He also conceded that he welcomed faxes from defendants if they were “[o]n something transactional.” [Dkt. # 214-3, Elwert Dep. (11/102015), at 121]. An account number and transactions done by fax make it sound like plaintiff was a customer of the defendants — like the two had an “established business relationship.” The other of plaintiffs two principals, Dr. Ruch, was selected to be the plaintiffs Rule 30(b)(6) witness. He said that plaintiff let their attorneys answer discovery. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 190-191, 204]. Yet, the attorneys never consulted with Dr. Ruch or his colleagues, even though the answers were being prepared for their verified signature. In any event, the attorneys never denied what Dr. Ruch claimed. The doctor went on to explain that he and/or Dr. Elwert read the discovery responses after they were completed. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 191]. But they did not change any óf the answers. As Ruch incredibly tried to say, he “really didn’t think too much about it ... what they are.” [Dkt. # 227-9 11/06/15].

What an extraordinary statement by someone who, in essence, is a professional litigant in junk fax cases and, if true — and that is exceedingly unlikely— what a disregard of the truth and Dr. Ruch’s obligations. If Dr. Ruch is telling the truth, it would not appear that plaintiff is directing the litigation, as it must, but rather is leaving it to the lawyers, with little regard for the truth and accuracy of what they do — or of what they say under oath. A plaintiff who seeks to be the class representative cannot simply shift, its duties to class counsel. Nor, can putative class counsel’s obligations be disregarded as cavalierly as did Dr. Ruch and Dr. Elwert. Figurehead plaintiffs are not permitted. See Lehocky v. Tidel Techs., Inc., 220 F.R.D. 491, 502-03 (S.D. Tex. 2004); Silver v. LA Fitness Int'l, LLC, 2013 WL 5429293, at *2 (E.D. Pa. 2013). And taking an active and honest and attentive and role in discovery is one of the hallmarks of an otherwise adequate class representative. Id. See also Silver, 2013 WL 5429293 at *2.

Dr. Ruch allowed the false answers to be filed and affirmed their truth even though the false answers related to his own company, thereby precluding any claim — and none is made — of inadvertence. Dr. Ruch absurdly claimed that he wasn’t aware that it was his responsibility to correct untrue, sworn responses about his own company — and his own case — even though he knew they were false or even to tell his own lawyers that the answers he claimed the lawyers prepared were not true. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 191]. But if not his responsibility, whose was it? After all, they were his sworn answers about his company and his case that he caused to be brought in a federal court. He unconvincingly tried to say when asked whose responsibility was it — his or his lawyers to correct his false answers — he claimed not to have any “understanding on that.” (Dr. Ruch Dep., 191). His attempted explanation — especially coming from an experienced litigant — is unacceptable. [Dkt. # 214-7, at 8/9; # 214-8, at 9/10; Dkt. # 227-9, Ruch Dep. (11/06/2015), at 88-194, 205].

Although said in a different context, Learned Hand’s cogent observation applies here: “Justice is not a game.... ” United States v. Paglia, 190 F.2d 445, 448 (2nd Cir. 1951). Unfortunately, Dr. Ruch was not a subscriber to this philosophy.

One who intentionally does not tell the truth about the case cannot be an effective class representative. Eubank v. Pella Corp., 753 F.3d 718, 724 (7th Cir. 2014)(“If he was lying and actually thinks the case worthless how could he have been an effective class representative even if he had no conflict of interest?”); Norman v. Arcs Equities Corp., 72 F.R.D. 502, 505 (S.D.N.Y. 1976)(“If plaintiffs eminence grise Dr. Norman is lying about how he came to the attorneys, then it is an unfit class representative.”).

The purpose of discovery is integral to the quest for truth and the fair adjudication of guilt or innocence. Taylor v. Illinois, 484 U.S. 400, 419, 430, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)(Brennan, J., dissenting). See also Cassidy v. Cassidy, 923 F.2d 856 (7th Cir. 1991)(the truth seeking process is perhaps court’s most important function); Trans-Cold Exp., Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216, 1220 (7th Cir. 1971)(truth is be better served by straightforward procedures than by deception and attempted surprise); Babcock & Wilcox Co. v. Foster Wheeler Corp., 432 F.2d 385, 388 (3rd Cir. 1970) (“the need for discovery as an aid in the quest for truth may be as compelling when a party submits his direct case as when he prepares to rebut his opponent’s presentation.”); President & Fellows of Harvard Coll. v. Elmore, 2016 WL 7508832, at *1 (D.N.M. 2016); Echon v. Sackett, 2016 WL 1732708, at *2 (D. Colo. 2016); Kincaid v. Wells Fargo Sec., LLC, 2012 WL 712111, at *1 (N.D. Okla. 2012)(Rule 26 seeks to find an appropriate balance between the truth-seeking goal of discovery and the purpose of the stated privilege); Rodriguez v. Presbyterian Healthcare Servs., 2012 WL 12894833, at *14 (D.N.M. 2012)(truth-finding is the purpose of discovery); Duplan Corp. v. Deering Milliken, Inc., 370 F.Supp. 761, 767 (D.S.C. 1972)(the search for truth is the object of all process including discovery). See also Fed.R.Civ.P. 1. (requiring that all federal rules of civil procedure be interpreted to secure the “just” resolution of civil litigation).

Far too many of the responses in this case did not fulfill the basic purposes of discovery. Indeed, they were antagonistic to them. Courts have repeatedly emphasized the importance of class representatives having reviewed court papers prior to filing, answering interrogatories (obviously in a truthful way), conferring with attorneys about the prosecution of the action, understanding the facts of the case are among their responsibilities as proposed class representatives. See Lehocky, 220 F.R.D. at 503; Silver, 2013 WL 5429293 at *2; Norman, 72 F.R.D. at 505. To accept the feeble attempt to explain what was purposely done here would require that we abandon our common sense and ignore what this record reveals. That we cannot do and still be faithful to the need that discovery be answered truthfully and that there be “rigorous” analysis of the factors that go into the approval of class representative.

The plaintiff has similar credibility problems regarding the merits-based issue of who had authority to consent to — or, more accurately, provide permission for — faxes to be received. When asked to admit that multiple staff members and physicians had the authority to grant permission to businesses to send plaintiff faxes, the plaintiff denied the statement, saying, curiously, that “[o]nly Dr. Ruch -and'Dr. Elwert had permission to send facsimiles.” [Dkt. # 214-7, at 4-5] (emphasis supplied). That’s not even responsive to the request, as Dr. Ruch conceded at his deposition. [Dkt. # 227-9, Ruch Dep. (11/06/2015), at 194], But, more importantly, it’s not true. As Dr. Ruch conceded, he should have admitted that assertion. [Dkt. # Ruch Dep. (11/06/2015), at 194], But he did not.

If only his lawyers had thought to consult with him. Oh, but he said he saw the responses after they were prepared by counsel. But he did not change them. Nor did he even tell the lawyers of the falsities. It is nonsensical to think he would have done nothing and let the false statements go out under his verified signature. Plaintiff is, after all, “a professional class-action plaintiff who regularly works with [Law Firm of] Anderson & Wanca to file TCPA cases,” Physicians Healthsource, Inc. 2014 WL 7366255, at *7, and Dr. Ruch is no stranger to participation in these cases.

“The mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity.” Avery v. Georgia, 345 U.S. 559, 564, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). See Coggeshall v. United States, 69 U.S. (2 Wall.) 383, 17 L.Ed. 911 (1864)(“Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.”); United States v. Rodriguez, 975 F.2d 404 (7th Cir. 1992)(“In isolation,. any one of the facts described in the Government proffers might conceivably be dismissed as mere coincidence. Considering the proposed evidence in total, it more than represents the sort of suspicious circumstances that convince us.... ”).

At worst, perjury has been committed. That’s certainly a serious credibility problem — and one that pertains directly to the facts of the case — which counsels against-finding the plaintiff an adequate class representative. At best (and this is unlikely), one or both of the doctors are merely lackadaisical participants in this litigation, who “don’t really think too much” about their responsibility to give truthful answers in discovery — even though the questions and answers related to the operation of their own company and their own case. But that explanation is unacceptable. False answers to simple questions were given not because of mistake or uncertainty, but because the Doctors thought it was helpful to their case to do so. Either way, the plaintiff is not an appropriate representative of the class their lawyers are attempting to have certified.

Perjury is a serious matter. “The legal system offers many ways to deal with problems; perjury is not among them.” Escamilla v. Jungmrth, 426 F.3d 868, 870 (7th Cir. 2005). And in “matters of discretion” a litigant that attempts to deceive the court “cannot expect favorable treatment....” Campbell v. Clarke, 481 F.3d 967, 969 (7th Cir. 2007). It cynically might be said that one willing to lie about multi-pie points in a case to push the cause forward — or was indifferent to matters that adversely affected him and the company he represented — is, in a twisted way, a rather zealous representative, although a dishonest one, and that is a disqualifier. It (or-he) is just not a representative that a court can countenance. And lying about matters that relate to the case, itself— such as not telling the truth in discovery— is a disqualifier. See cases cited at 23 supra; Eubank, 753 F.3d at 724 (“If he was lying and actually thinks the case worthless how could he have been an effective class representative even if he had no conflict of interest?”).

This overview of the plaintiffs impermissible gamesmanship in discovery, which is not allowed, Dillon v. BMO Harris Bank, N.A, 2015 WL 6619972, at *2 (M.D.N.C. 2015); see cases at n. 11, supra, scuttles what the plaintiff touts as its main selling point as a class representative: that it has been a plaintiff in many cases. That it has been is further proof that its present claims about its conduct in this case ares unpersuasive. It is not a newcomer to the process (far from it) and cannot possess so cavalier an attitude to its responsibilities in litigation — responsibilities which lie at the core of our system of truth-seeking. Parties must engage in discovery in good faith, without gamesmanship,

Given what has been done by the plaintiff thus far in this case, it is difficult to give any credence to the argument that plaintiff “ ‘may be better able to monitor the conduct of counsel, who as a practical matter are the class’s real champions.’ ” [Dkt. #204-1, at 14 (quoting Murray v. GMAC Mortg. Corp., 434 F.3d 948, 954 (7th Cir. 2006)) ]. If Drs. Ruch and Elwert aren’t even verifying the accuracy of their verified discovery responses — and that is the only realistic conclusion to be drawn— there can be no assurance of monitoring of counsel by them. Nor — and this is of even greater importance — can there be the assurance that the class representative will attempt to be truthful in this case. Such a class representative is plainly insufficient — -just a place-holder for the attorneys driving the case. In short, experience is not decisive.

The same is true of its experienced lawyers. It should be noted parenthetically that acceptance of the testimony the plaintiff has offered makes the lawyers less than desirable representatives in this case since they allegedly did not consult in advance with their clients about answers to interrogatories and did not consult with them even after they allegedly prepared the answers but before they were filed. It is tantamount to a doctor letting his patient make a diagnosis and then not even consulting with him about the validity and accuracy of what the plaintiff thought. As such, the experience factor of the lawyers has vastly diminished significance in the adequacy analysis and cuts against a finding of adequacy of representation in this case. One is reminded of Judge Easter-brook’s observation in Blue Cross & Blue Shield Ass’n v. Am. Express Co., 467 F.3d 634, 638 (7th Cir. 2006), “[i]f these lawyers were physicians, their patients would be dead.”

To support its claim of adequacy, plaintiff submits that it (and its officers) had to answer a lot of discovery and sit for depositions in Chicago. It also notes that the defendants filed a counterclaim against it that was dismissed and sent to arbitration in North Carolina — yet another “burden” claimed by plaintiff. [Dkt. # 204-1, at 15]. Neither argument suffices to make the plaintiff an adequate class representative. As all the courts have held, and as the Federal Rules of Civil Procedure inherently demand, honest and responsive participation in discovery is required of everyone who brings suit or is sued. See cases supra at 23. The fact that plaintiff is subject to the rule that govern all litigants is not enough to ensure that the applicant is qualified to be the class representative. The fact that the doctors had to travel to Chicago for depositions was a result of their desire that the plaintiff be the class representative, and the need to be deposed in Chicago resulted from their choice of Chicago as the forum for their suit, rather than the Southern District of Ohio in Cincinnati, where the plaintiffs business is located. See 28 USC § 1391(b). It was also probably a nod to the fact that its chosen Law Firm, with which it has an ongoing relationship, was in Chicago.

And if filing sworn answers in discovery is a matter that the plaintiffs representative did not give much thought to — as Dr. Ruch claimed under oath — then there is insufficient assurance that the plaintiff will be an adequate class representative.

The party seeking certification bears the burden of demonstrating that certification is proper by a preponderance of the evidence. Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 433 (7th Cir. 2015); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The evidence here all runs counter to the plaintiff being an adequate representative. The plaintiffs principals either lied, or were indifferent to their responsibilities as a class representative, or both. “If the party certification fails to meet any of the[ ] four requirements [in Rule 23], class certification is precluded.” Kress v. CCA of Tennessee, LLC, 694 F.3d 890, 893 (7th Cir. 2012). The plaintiffs motion to certify the class must be denied.

E.

The Defendants’ Counterclaim

As already noted, the defendants filed a counterclaim, alleging that the plaintiff breached a software agreement by subli-eensing the software to a former employee, Geri Monhollen. That counterclaim claim was dismissed for improper venue owing to an arbitration clause in the software agreement, and went to arbitration in North Carolina. The substantive question for the arbitration was whether the plaintiff subli-censed the software to a former employee.

It’s worth noting, to underscore the plaintiffs attitude towards the proper responsibilities of participating in discovery, that throughout discovery, the plaintiff denied that it sublicensed the software and denied the point in its response to the defendants’ Local Rule 56.1 statement of facts. [Dkt. # 271, ¶¶ 37, 38]. Four years into this case, plaintiff produced the very sublicense it claimed in discovery did not exist. [Dkt. # 274-2].

Also of concern is the deal Dr. Ruch said that he had made with Montgomery, Ren-nie & Johnson, which is representing the plaintiff both here and in the arbitration proceedings. According to Dr. Ruch, he and the Firm had agreed that any damages plaintiff might incur in the arbitration proceeding would be taken out of settlement proceeds in the class action, as would any fees due counsel for its representation of the plaintiff in the arbitration. [Dkt. # 227-22, Ruch Dep., at 84-85]. Thus, the plaintiff swore that one of his class action Law Firms and the plaintiff had put the class on the hook for a benefit that inured solely to the plaintiff, further undermining plaintiffs adequacy as class representative. In In re Walgreen Co. Stockholder Litig., 832 F.3d 718, 725 (7th Cir. 2016), the Seventh Circuit said: “ ‘A class representative who proposes that high transaction costs (notice and-attorneys’ fees) be incurred at the class members’ expense to obtain [no benefit to the class] ... is not adequately protecting the class members’ interests.’ ” (Parentheses and brackets in original).

An attorney for the Montgomery Firm, Matthew Stubbs, has filed a terse declaration in this case, consisting of four, 1 or 2 sentence paragraphs, spanning a mere 1 1/4 pages. Paragraph 4 consists of one conclusory sentence stating that the Montgomery, Rennie & Johnson Firm “has no agreement with PHI to pay any liability that PHI incurs as a result of the arbitration claims.” (Emphasis supplied). But that is not responsive to what Dr. Ruch contended. He said that he had an agreement any damages would be paid out of the class recovery, and that is very different than what the Montgomery Rennie declaration states. Thus, Dr. Ruch’s allegation in this regard stands unrebutted and unde-nied. While inferences from silence can be perilous, the declaration’s failure to deny (or even mention) Dr. Ruch’s assertion that he had an agreement with his lawyers that any damages would be paid out of the class settlement is significant. See Muhammad v. Oliver, 547 F.3d 874, 877 (7th Cir. 2008)(Posner, J.)(“[I]f there is an executed standstill agreement, one would expect an allegation to that effect. There is none. The complaint’s silence is deafening.”). And, it could not be accidental given the skill and experience of the preparer of the Montgomery Rennie declaration.

So in other words, if Dr. Ruch is telling the truth about the prior existence and the source of payment of damages, the class would not be represented by counsel or a class representative having the candor and disinterestedness that the law requires. If Dr. Ruch is not telling the truth, and there was no such deal — a matter on which the Stubbs declaration is silent (it speaks only to the present) — it is obvious that his Firm is not an adequate class counsel. If he is telling the truth and his lawyers assured him that any arbitration award against the plaintiff would come out of the class recovery, the lawyers cannot be deemed to be adequate class counsel.

The plaintiff contends that, because the arbitrator’s award went in its favor and defendants have to pay fees and costs, the point is moot. [Dkt. #291]. But it most certainly is not. The question is whether such a deal was made at all, as the plaintiff insists, or it was not, as one of the lawyers’ declarations asserts. Either way, it bodes ill for the plaintiff for the reasons we have discussed. Either the lawyer is not telling the truth and there was a deal about damages, or the plaintiff is not telling the truth and there no such arrangement — or at least not the one attributed to the lawyers. In either event, when combined with everything else that this record demonstrates has occurred, the plaintiff should not be the class representative.

Adequacy of counsel is the other part of this analysis; but without an adequate class representative or certified class, it is an ácademie exercise here — but a worthwhile one, as this may not be the last certification motion in this case. Counsel for a certified class is appointed by the judge presiding over the class action, and in deciding to appoint a lawyer to be class counsel the court “may consider,” besides the lawyer’s competence, experience, related professional qualifications, “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed.R.Civ.P. 23(g)(1)(B), (g)(4); Eubank, 753 F.3d at 724; Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489, 498-99 (7th Cir. 2013).

Here, the plaintiff has- a battalion of lawyers representing it in its junk fax case: 13 lawyers from four different Law' Firms located in four different cities in three different states. Three of those Firms are proposed as co-class counsel: Andersen & Wanca; Bock <& Hatch; and Montgomery, Rennie & Jonson. In making their case for adequacy, the Firms, in one conclusory paragraph, focus on experience. They assert they have done many junk fax class action cases and have been found adequate in the past. So. why not now, they argue? Prior engagement is a factor in their favor, but it is not conclusive or Rule 23 and the cases would say so. They don’t. Indeed, they hold that experience alone is not the decisive factor — although it is a factor. But each case is necessarily different and presents different facts that must be considered.

The conclusory, single paragraph in the plaintiffs brief ignores the requirement that counsel must prove their entitlement to be class counsel, and there must be a “rigorous” analysis of their claimed entitlement. Experience alone is never decisive.

The cases cited in plaintiffs brief are not exactly informative or helpful, for courts routinely refuse to be bound by or even consider cases that arrive at conclusions without meaningful analysis. See, e.g., E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012) (rejecting opinion for lack of analysis); and Szmaj v. Am. Tel. & Tel. Co., 291 F.3d 955, 956 (7th Cir. 2002)(the cited case provided at best only “weak authority” because there is no discussion of the point, only a conclusion). In these cases, counsel’s adequacy was either unchallenged, G.M. Sign, Inc. v. Finish Thompson, Inc., 2009 WL 2581324, at *6 (N.D. Ill. Aug. 20, 2009); unaddressed, Targin Sign Sys., Inc. v. Preferred Chiropractic Ctr., Ltd., 679 F.Supp.2d 894, 895 (N.D. Ill. 2010); or accepted without any analysi