Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant

The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley.  See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022).

The putative class action suit alleged that ETS “sent solicited and unsolicited fax advertisements to Bais Yaakov and thousands of other recipients without the legally required opt-out notices, in violation of the Telephone Consumer Protection Act.”  The Second Circuit declined to entertain the question of class certification because, to the extent that some would-be plaintiffs received solicited faxes without opt-out notices, Bais Yaakov’s claims were barred by Gorss Motels, Inc. v. FCC, 20 F.4th 87, 92 (2d Cir. 2021), which held that Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017) (Kavanaugh, J.) is binding in the Second Circuit.  Bais Yaakov of Spring Valley v. FCC “invalidated regulations that had extended the TCPA’s opt-out requirements to solicited fax advertisements.”  (For a more in-depth analysis of that D.C. Circuit Court decision, see the TCPA Blog’s 2017 discussion of the opinion, here.)  Because “[d]rawing the line between solicited faxes and unsolicited faxes in this case would require individualized factfinding,” the Second Circuit upheld the District Court’s determination that “the questions of law or fact common to class members did not predominate over questions affecting only individual members.”

The panel also affirmed the dismissal of Bais Yaakov’s individual TCPA claims, which were rendered moot when the District Court granted ETS’s motion for a judgment in Bais Yaakov’s favor in the amount of $12,000, plus costs.  Bais Yaakov opposed ETS’s “unilateral” offer, preferring to avoid dismissal of its claims on mootness grounds and to continue its TCPA crusade, but did not dispute that $12,000 would satisfy its individual damages.  The Second Circuit was satisfied with ETS’s offer “to deposit with the Court more than the maximum amount Bais Yaakov could recover on its TCPA claim,” even though Bais Yaakov opposed the judgment.

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