Single Fax Received by E-Mail Deemed Insufficient to Confer Article III Standing

As we have reported here and here, courts throughout the country, including most notably the Eleventh Circuit in Salcedo v. Hanna, have grappled with the question of whether a single unsolicited text message may constitute sufficient injury to satisfy the constitutional standing requirement in Article III. The Salcedo court held that one text message does not suffice.

But what about a single fax? That was the question recently presented to the Middle District of Florida in Daisy, Inc. v. Mobile Mini, Inc., No. 20-0017 (M.D. Fla. Sept. 24, 2020). The court similarly found that, at least under the relatively unique circumstances of the case, a single fax did not confer standing.

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Divided Third Circuit Panel Holds that Offers to Buy Can Qualify as “Advertisements” Under the TCPA

A divided panel of the Third Circuit Court of Appeals recently reversed the dismissal of TCPA claims, finding that the faxes at issue were advertisements within the meaning of the TCPA. Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). The Court made this finding even though the faxes at issue did not attempt to sell anything, but rather contained offers to buy the recipients’ services.

In Fischbein, the Third Circuit heard two consolidated appeals in which plaintiffs alleged that the defendants had violated the TCPA by sending them faxes that offered money in exchange for responses to market research surveys. Id. at 561. In both cases, the trial court dismissed the claims because the faxes were not an attempt to sell anything, and thus were not “advertisements” such that the sender needed a recipient’s prior express consent. A divided panel of the Third Circuit disagreed because, in its view, an offer to buy products, goods, or services can also qualify as an advertisement under the TCPA. Id. at 561.

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D.C. High Court Holds that Businesses Do Not Face Strict Liability for Junk Faxes Advertising Their Products, Agency Principles Apply

FDS Restaurant, Inc. v. All Plumbing, Inc., No. 16-CV-1009, 2020 WL 1465919 (D.C. Mar. 26, 2020)

In a recent TCPA junk-fax case, the District of Columbia Court of Appeals drew the intuitive conclusion that businesses do not incur TCPA liability whenever their products are advertised via fax. The proposition that strict vicarious liability does not apply to advertised businesses is a simple one, but—as the D.C. Court of Appeals noted—courts have diverged as to the proper standard to apply for assessing vicarious liability for faxes sent in violation of the TCPA. In FDS Restaurant, the D.C. Court of Appeals had to decide for itself which standard to apply in this context.

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Federal Court Reverses Course and Decertifies Settlement Class

After preliminarily approving a TCPA settlement arising out of allegedly unsolicited faxes, the Middle District of Florida recently reversed course and rejected the settlement in light of the Eleventh Circuit’s finding that the district court had erred in denying a new party’s request to intervene. See Tech. Training Assocs., Inc. v. Buccaneers Ltd. P’ship, No. 16-1622, 2019 WL 4751799 (M.D. Fla. Sept. 30, 2019).

The plaintiffs (Technology Training Associates, Inc. and Back to Basics Family Chiropractic) sued the defendant (Buccaneers Limited Partnership) after they received allegedly unsolicited faxes offering Tampa Bay Buccaneers tickets. The plaintiffs further alleged that the faxes did not comply with the TCPA because they did not include the required opt-out notice.

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Court Denies Class Certification Due to Individualized Issues Regarding Recipients’ Consent to Receipt of Faxes

In E&G, Inc. v. Mount Vernon Mills, Inc., No. 17-0218, 2019 WL 4032951 (D.S.C. Aug. 22, 2019), the District of South Carolina denied class certification because individualized issues—specifically, whether recipients had consented to receive the fax at issue—predominated.

Plaintiff E&G, Inc. (“E&G”), a hotel franchisee of Wyndham Worldwide Corporation (“WWC”), received a fax from WWC that included advertisements from certain approved WWC vendors, including defendant Mount Vernon Mills, Inc. (“Mount Vernon”). E&G’s franchise agreement with WWC allowed WWC to offer assistance with purchasing supplies and to provide lists of preferred suppliers. E&G provided WWC with its fax number and updated its contact information over the course of several years.

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A Busy Week for Fax Advertisements in the Supreme Court

Earlier this week, the Supreme Court declined to review a Ninth Circuit ruling regarding what does and doesn’t qualify as an “advertisement.”  Supply Pro Sorbents, LLC v. RingCentral, Inc., No. 18-1381, 2019 WL 1959304 (U.S. June 17, 2019).

Fax cover pages were at issue. The defendant in the case allows customers to send online faxes.  Those faxes include a cover page with one line of text that identifies the company (“Send and receive faxes with RingCentral”) and its website (“www.ringcentral.com”). The filer alleged that those cover sheets were advertisements, and therefore that the defendant had violated the TCPA because it did not have recipients’ consent to send them. Continue reading   »

E.D. Pa. Court Dismisses Case, Finding That Fax Was Not An Advertisement

The Eastern District of Pennsylvania recently granted a motion to dismiss in a putative TCPA class action because the plaintiff failed to plausibly allege that the fax at issue constituted an unsolicited advertisement. Mauthe v. Spreemo, Inc., No. 18-CV-1902, 2019 WL 342715 (E.D. Pa. Jan. 28, 2019). The outcome hinged on the specific content of the fax at issue. Continue reading   »

Eastern District of Michigan Finds No Strict Liability for Faxes Sent Without Defendant’s Knowledge or Involvement

Recently, an Eastern District of Michigan court entered summary judgment in favor of a defendant upon finding that it had neither transmitted nor caused the transmission of the fax at issue. In Garner Properties & Management, LLC v. Marblecast of Michigan, Inc., the plaintiff alleged that it had received an unsolicited fax that referenced the products of two companies: Marblecast of Michigan and American Woodmark. The plaintiff sued both companies in a putative class action. American Woodmark eventually moved for summary judgment and argued that the plaintiff had failed to offer evidence from which a reasonable juror could conclude that it had “sent” the fax at issue. See 47 U.S.C. § 227(b)(1)(C) (“It shall be unlawful for any . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless. . . .”) (emphasis added). In opposition, the plaintiff argued that American Woodmark was strictly liable as a sender under the TCPA because the fax had referenced its products. Continue reading   »

Court Denies “Individualized Challenges” to Class Members’ Right to Recover

The Northern District of Illinois recently issued an order that denied defendants an opportunity to present “individualized challenges” to the members of a certified class in a TCPA fax case. The court determined that the defendants waived their right to challenge whether certain members of the class were entitled to recover because defendants did not assert their objections at the time the court approved the initial class notice. Continue reading   »