Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each party and (ii) if indeed there was a violation, who bears responsibility for it?
Category - "Faxes"
Plaintiffs’ Firms Ask FCC to Vacate 117 Retroactive Waivers
Plaintiffs’ firms recently filed six different applications for review of the Consumer and Governmental Affairs Bureau’s Order granting 117 petitions for retroactive waivers of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). Because the deadline for filing a petition for reconsideration pursuant to 47 C.F.R. § 1.429 had passed, several firms have tried to seek reconsideration by filing applications for review pursuant to 47 C.F.R. § 1.115.
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A Busy Summer at the FCC: The Commission Releases Its Fax Waiver Order
On August 28, 2015, the Consumer and Governmental Affairs Bureau (“Bureau”), on authority delegated from the Federal Communications Commission, released an Order (“August 28 Order”) granting 117 petitions seeking a retroactive waiver of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). The August 28 Order was the first time since the October 30, 2014 Fax Order (reported on here, wherein the FCC retroactively waived the applicability of Section 64.1200(a)(4)(iv) as to 24 petitioners, and invited similarly-situated parties to file petitions of their own requesting the same relief) that the Bureau addressed the applicability of Section 64.1200(a)(4)(iv). The petitions granted on August 28 were filed between September 30, 2014, and June 16, 2015.
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Illinois Federal Court Follows Eleventh Circuit’s Broad Definition of “Sender” in Blast Fax Case
Through prior posts (see here, here, and here), we have monitored the FCC’s somewhat perplexing distinction between calls and faxes in the context of analyzing direct and vicarious liability under the TCPA. Just two months ago, the FCC’s position, as originally set forth in a letter brief, was adopted by the Eleventh Circuit in Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (“Sarris”). The Sarris court held that “a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly” under the TCPA.
Court Grants Summary Judgment to Plaintiff Class in Blast Fax Case, Awards More Than $22 Million in Statutory Damages
In September, we reported that a court in the District ofNew Jersey denied the defendants’ motion for summary judgment in a “fax blast” class action, concluding that the defendants could be directly liable under the TCPA for fax advertisements they did not actually send, but rather that were sent by a third-party marketing firm to promote the defendants’ goods or services. See City Select Auto Sales, Inc. v. David Randall Associates, Inc., No. 11-2658, 2014 WL 4755487 (D.N.J. Sept. 24, 2014) (“City Select I”).
Six months later, relying heavily on that earlier ruling, the court has entered summary judgment on behalf of the plaintiff class and awarded it statutory damages of $22,405,000. City Select Auto Sales, Inc. v. David Randall Associates, Inc., et al., No. 11-2658, 2015 WL 1421539 (D. N.J. Mar. 27, 2015) (“City Select II”).
Failure to Identify Fax Recipients Shows Putative Class Is Not Ascertainable
A court in the Northern District of Illinois recently denied class certification in a “fax blast” case because the plaintiff failed to meet its burden of proof in showing that the putative class was ascertainable where there was no evidence identifying the recipients of the faxes. Physicians Healthsource, Inc. v. Alma Lasers, Inc., et al., No. 12-4978, 2015 U.S. Dist. LEXIS 41339 (N.D. Ill. Mar. 31, 2015).
From the perspective of defense counsel, this case is a reminder of the importance of holding plaintiffs to their burden proof in showing that all of Rule 23’s requirements are satisfied when opposing a motion for class certification. As we have written previously, plaintiffs face a hurdle in showing a class is ascertainable where there is no objective criteria establishing the identities of recipients of a particular communication.
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Take Care When Crafting an Offer of Judgment
In Compressor Eng’g Corp. v. Thomas, Case No. 10-10059, 2015 U.S. Dist. LEXIS 20079 (E.D. Mich. Feb. 19, 2015), Defendant Charles Thomas Jr. sought to moot the claim of Plaintiff Compressor Engineering Corporation (“Compressor”) by making an offer of judgment for $1,500, the maximum statutory award for a single violation of the TCPA.
Compressor filed suit after receiving an allegedly unsolicited fax and sought to certify a class of “[a]ll persons that are holders of telephone numbers to which a facsimile transmission was sent on behalf of Defendant advertising the goods or services of Defendant at any time from August 13, 2005 to present….” Id. at 4. In addition to seeking monetary damages, Compressor also sought injunctive relief.
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District of Connecticut Blocks Pick-Off Attempt (Twice)
In Mey v. Frontier Communs. Corp., No. 3:13-1191-MPS, 2014 U.S. Dist. LEXIS 161675 (D. Conn. Nov. 18, 2014), Plaintiff Diana Mey alleged that she received two calls to her cell phone from Frontier’s automatic telephone dialing system. Id. at *2-3. Mey filed a complaint against Frontier and simultaneously moved for class certification. Id. at *4-5. Two months later, Frontier wrote to Mey and offered to settle her claims with a payment of $6,400 plus taxable costs and entry of prospective injunctive relief. Mey declined. Id. Frontier then moved to dismiss, arguing that the court lacked subject matter jurisdiction because Frontier’s offer had “mooted Ms. Mey’s individual claim and all potential class claims.” Id.
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The FCC’s Clarification of its Blast Fax Rules to “Solicited” Fax Ads under Siege
In an attempt to clear out the backlog of numerous pending petitions addressing how the FCC’s “Blast Fax” rules apply to consensual fax advertisement transmissions, the agency on October 30, 2014 issued an Order addressing the need for and form of opt-out notices required for fax ads. The FCC’s rules since 2006 have contained a requirement that opt-out information be displayed on the faxed ad and that that notification requirement applies to both solicited fax ads, which are sent with the recipients’ prior express permission or invitation, and to non-solicited fax ad transmissions. A large number of Blast Fax lawsuits have involved fax ads reportedly sent with prior express consent but that may have lacked the required FCC opt-out notification or that failed to use the exact language the FCC rule appeared to require. Many defendants in these lawsuits beat a path to the FCC seeking either relief from or clarification of opt-out requirements, claiming in some cases confusion about when opt-out notices were in fact required.
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Northern District of Illinois Applies Twombly/Iqbal Pleading Standard to Affirmative Defenses in TCPA Case
In a TCPA action involving allegedly unsolicited fax advertisements, the Northern District of Illinois applied the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) to affirmative defenses. See Mussat v. Power Liens, LLC, No. 13-7853, 2014 U.S. Dist. LEXIS 141561 (N.D. Ill. Oct. 6, 2014). We recently discussed a similar TCPA case where the court held that the plausibility standard did not apply, and in doing so sided with the majority view that the textual differences between Rule 8(a)(2) (claims) and Rules 8(b)(1)(A) (defenses) and 8(c)(1) (affirmative defenses) prevented the application of the plausibility standard to affirmative defenses. See Exclusively Cats Veterinary Hospital, P.C. v. Pharmaceutical Credit Corp., No. 13-14376, 2014 U.S. Dist. LEXIS 132440 (E.D. Mich. Sept. 22, 2014). Perhaps because the defendant focused elsewhere in its briefing, the Mussat court simply cited a 25-year-old decision from the Seventh Circuit holding that courts can strike affirmative defenses that do not satisfy federal pleading standards and then recited the requirements of the Twombly/Iqbal plausibility standard. Mussat, 2014 U.S. Dist. LEXIS 141561 at *2.