The United States Court of Appeals for the Seventh Circuit affirmed that commercial messages sent via facsimile (“faxes”) by a marketing firm on behalf of an attorney to more than two hundred certified public accountants (“CPAs”) violated the Telephone Consumer Protection Act (“TCPA”) because they did not inform the recipients how to stop receiving future messages.
Background of TCPA Fax Case
Attorney Gregory Turza hired a marketing firm, Top of Mind, to send “Daily Plan-It” faxes once every other week to CPAs. The faxes contained mundane business advice, along with Turza’s name, business address, logo and a description of his business services. Although the faxes were sent in Turza’s name, Turza did not author or edit them. In fact, he never even reviewed them. The faxes were comprised of 75% business advice and 25% marketing material describing the commercial availability of Turza’s legal services.
In 2008, a CPA firm that received thirty-two faxes from Turza filed a putative class action against him in the Northern District of Illinois. The District Court held that Turza was liable for violating the TCPA because each fax failed to contain opt-out information to allow the recipient to stop receiving future faxes from Turza. The District Court entered a verdict against Turza in the amount of $4,215,000.00, which included a payment to the class representative plaintiff, a payment to each class member, an award of plaintiff’s attorneys’ fees, and directed that any residual funds be paid to a specific charity.
On appeal, the Seventh Circuit affirmed the District Court’s decision on the merits (Turza’s liability under the TCPA), but vacated the remedial order because, among other reasons, it was unclear how each class member would be paid (through a third-party administrator, etc.) and, if the attorney had sufficient funds to pay such a large judgment, whether the charity selected by the judge was the appropriate recipient of any possible remainder.
Why the Attorney Was Found to Have Violated the TCPA
The District Court held, and the Seventh Circuit affirmed on appeal, that regardless of whether the faxes were sent to recipients who had consented to receive them or otherwise had an established business relationship with Turza, each fax violated the TCPA because it did not contain information which would allow the recipient to opt-out from receiving commercial faxes in the future.
Turza argued that the TCPA did not apply because the faxes did not contain advertisements. Further, he argued, even if they did contain ads, such ads were merely incidental to the business advice given in the faxes. The court was not persuaded by Turza’s arguments, finding that, from a basic review of the faxes at issue, it was obvious that the purpose of the faxes was promotional and served to market Turza’s services.
The Seventh Circuit separately noted that the marketing firm, Top of Mind, had hired a third party, MessageVision, to send the actual faxes. The court further noted that Turza did not argue that Top of Mind (or any other “person”) was responsible for sending the faxes at issue in the class action lawsuit. Even if he had, however, Turza still would be held accountable under the TCPA.
Takeaway
If you hire a third party to promote your business by fax, mobile telephone or landline telephone – even if you believe that such promotion is tangential to the message being delivered – read it (or have an attorney review it) before it is transmitted to one, or hundreds of consumers. Also, be sure to have an adequate indemnification agreement in place so you can look to the person/company responsible for marketing your products or services for reimbursement of your costs if you do get sued.
If you are interested in learning more about this topic or need to review your marketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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