Burger King Can’t Have it Its Way: TCPA Class Action Continues

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The United States District Court for the District of Maryland recently refused to dismiss a putative Telephone Consumer Protection Act (“TCPA”) class action filed against Burger King Corp. (“Burger King”), for allegedly sending thousands of unauthorized facsimile messages advertising its food delivery services.

Plaintiff, a realty corporation, argued that Burger King had violated the TCPA because plaintiff had not consented to the receipt of any marketing messages from Burger King and that the subject facsimile messages allegedly did not include an opt-out notice as required by the TCPA.

A Whopper of a TCPA FaxClass Action

Burger King argued that the action should be dismissed because plaintiff failed to allege that the facsimile advertisements at issue were received on an actual ink-and-paper facsimile machine.  Burger King based this argument on a New Jersey State Court decision holding that a fax received by computer did not violate the TCPA because the recipient did not have to print the facsimile message.  The Court rejected Burger King’s argument and reasoned that the “natural inference” from reviewing the complaint, coupled with statements made in plaintiff’s opposition brief, led to the conclusion that the subject facsimile messages were received on a traditional fax machine.

Burger King further moved to strike the class allegations on the basis of its argument that TCPA cases, by their nature, are not suitable for class action treatment and, therefore, plaintiff would never be able to certify a class.  The Court dismissed this argument, relying on a string of other cases that have permitted TCPA class actions to proceed.

A Crown for the King

Also before the Court was plaintiff’s motion for class certification, which was filed early in the action to prevent a buy off of plaintiff.  The Court denied the motion as premature, but noted that the class that plaintiff seeks to certify (any person or entity nationwide to whom Burger King sent, or caused to be sent, facsimile advertisements promoting Burger King and its food delivery services during the past four years) is likely too broad to survive certification in the future.  The Court noted that the class period of four years was particularly broad, but that it was based on the TCPA statute of limitations.   It cautioned plaintiff that should it be unable to establish facts that support such a broad class definition, it may be unable to certify the class or continue the action in the future.

Takeaway (or Takeout, in this instance)

Any company that markets its services via telemarketing, text message or facsimile must understand the TCPA in order to implement its requirements.  If you do find yourself on the defense in a TCPA litigation, the first step is to speak with experienced counsel and explore ways to get out of the litigation as painlessly (and inexpensively) as possible.

If you are interested in learning more about this topic or TCPA requirements in general, 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.

Attorney Advertising

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

(212) 246-0900

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