A district court in the Northern District of Ohio recently denied a plaintiff’s motion for class certification in a TCPA blast fax case, finding that the proposed class failed to meet the commonality requirement under Federal Rule of Civil Procedure 23(a)(2). Specifically, the court noted that “the proposed class includes entities that requested the facsimiles and/or had prior business relations” with the defendants and that the faxes sent to those entities did not violate the TCPA. A copy of the opinion in Sandusky Wellness Center, LLC v. Wagner Wellness, Inc., et al., No. 3:12 CV 2257, 2014 WL 1224418 (N.D. Ohio Mar. 24, 2014), is available here.
Category - "Faxes"
Court Certifies TCPA Class Action and Subjects Defendant to Aggregate Liability After Discounting Contrary Authority
Despite a readily available forum for individual suits and the disproportionate and the potentially ruinous liability a TCPA class action presents, a New Jersey District Court nonetheless deemed a class action the superior mechanism for resolving a TCPA suit In A & L Indus., Inc. v. P. Cipollini, Inc., No. 12-7598, 2013 WL 5503303, at *5 (D.N.J. Oct. 2, 2013). The defendant then sought reconsideration, which the District Court recently denied.
The lawsuit arose from a fax advertisement that a marketing company sent to more than 4,000 recipients on behalf of defendant Cipollini, Inc., a roofing company. Id. at *1. Neither Cipollini nor the marketer had obtained prior express consent from these recipients. One of them, plaintiff A & L Industries, Inc., brought a class action alleging violations of the TCPA and other claims. Id.
TCPA Class Certification Denied — Necessity of Individualized Consent Inquiries Doom Certification of TCPA Class Actions
Once again, a defendant has defeated a TCPA class certification motion on the ground that the liability inquiry would require individualized inquiries into class members’ consent to receive calls, precluding a finding of predominance.
In Connelly v. Hilton Grand Vacations Co., LLC, — F.R.D. —-, Case No. 12CV599 JLS (MDD), 2013 WL 5835414 (S.D. Cal. Oct. 29, 2013), plaintiffs sued a resort properties operator alleging that its third party marketer violated the TCPA by using an ATDS to make telemarketing calls to cell phones without obtaining prior express consent. Id. at *1. Plaintiffs sought to certify a sprawling class of all recipients of any of 37 million calls to 6 million different numbers over a four-year period, and sought statutory damages for this would-be class “that could total between $18 and $54 billion.” Id. at *1.
District Court Endorses FCC Liability Limitation for ‘Fax Broadcasters’
A federal district court judge in Maryland gave a clear endorsement of the FCC’s regulation limiting fax broadcasters’ liability under the TCPA. Asher & Simons, P.A. v. J2 Global Canada, Inc., No. JKB-13-0981, 2013 U.S. DIST. LEXIS 148972 (D. Md. Oct. 16, 2013). FCC regulations limit the liability of so-called fax broadcasters (those who transmit faxes for a fee on behalf of others) to those circumstances in which a broadcaster “demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions.” 47 C.F.R. § 64.1200 (a)(4)(vii). The Canadian affiliate of j2 Global asserted the FCC regulation as an affirmative defense, and the plaintiffs challenged this particular defense by a motion for partial summary judgment. The plaintiffs argued that FCC regulatory authority under the TCPA is limited, and could not be read to include the power to limit liability for any transmission of an unsolicited fax.
Continue reading “District Court Endorses FCC Liability Limitation for ‘Fax Broadcasters’”
Seventh Circuit: Facsimiles Feigning to Be Newsletters Are Still Advertisements under the TCPA
In its recent decision in Holtzman v. Turza, No. 11-3188, 2013 WL 4506176 (7th Cir. Aug. 26, 2013), the Seventh Circuit held that unsolicited advertisements, even those presented in the guise of a newsletter providing advice, violate the TCPA.