Multiple Questions Could Derail TCPA Class Actions

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FaxThe case of Physicians Healthsource, Inc. v. Stryker Sales Corp., et al., currently pending in the United States District Court for the Western District of Michigan, has presented very fundamental questions that go to the heart of Telephone Consumer Protection Act (“TCPA”) class actions.  The underlying facts of the case are fairly straight forward.  The plaintiff, a self-identified “multidisciplinary medical facility,” employs a number of chiropractors, general internal physicians and pain management specialists.  The defendants, among other things, host educational seminars for primary care physicians around the country.

The plaintiff alleges that on October 12, 2009, a facsimile announcing a seminar was sent by the defendants to a doctor employed by the plaintiff at the plaintiff’s medical offices.   Although the defendants obtained the doctor’s name and facsimile telephone number from the American Medical Association, the facsimile nevertheless failed to include the necessary “opt-out” language as prescribed by the Federal Communications Commission (“FCC”).  Three years later, on July 16, 2012, the plaintiff filed suit.  On July 22, 2013, the plaintiff moved to certify a class of:

All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of [d]efendants, and (3) which did not display a proper opt out notice.

Defendants Argue that the Plaintiff Lacks TCPA Class Action Standing

In opposing the plaintiff’s motion for class certification, the defendants argue that the proposed class is not ascertainable because the “all persons who were sent faxes” description of the class is far too broadly sweeping.  Specifically, the defendants argue that class members must be owners of the facsimile machines receiving the communications to have standing under the TCPA.  Relying on caselaw originating in another federal court, the defendants suggest that a class of individuals or entities who “were sent” facsimile messages can never be certified because individualized determinations of who actually owns each subject facsimile machine would be required in order to define a class.  As one court noted, “there is the possibility of multiple plaintiffs stemming from one fax transmission – all individuals at a home or employed by a corporate entity, any person who happened to ‘intercept’ a fax advertisement by picking it up.”  The defendants suggest that class certification becomes especially complicated where the facsimile messages are sent to corporate entities because multiple persons within such organizations might fall within the class definition of being facsimile recipients while not having standing under the TCPA.

An Advertisement by Any Other Name?

Critical to the case is what qualifies as a commercial advertisement.  In October, the defendants moved to dismiss the complaint because the facsimile at issue was not an advertisement within the meaning of the TCPA.  The defendants argued that the subject facsimile never mentioned property, goods or services of any kind and, therefore, cannot be construed as a commercial advertisement under the TCPA.  Although the court denied the motion to dismiss as premature, the defendants revisited this argument in opposing class certification.

Aside from the fact that the facsimile at issue did not inform recipients about the commercial availability of goods or services, defendants suggested that because the content, speakers and overall presentation of the featured seminars varied so greatly from venue to venue, a class should not be certified because the individualized presentations and materials of each seminar inherently precluded the suggestion that plaintiffs would be similarly situated.

Protect Yourself against TCPA Class Action Claims

The court’s decision in the Physicians Healthsource case could be a wide-sweeping indictment of how TCPA class action cases are litigated in the future.  Indeed, the very fundamental question of who has the right to bring a case for damages under the TCPA may be turned on its head.  We will continue to monitor this case, as well as all nationwide TCPA class actions.  It is important that businesses understand the various provisions of the TCPA and protect themselves before they are served with legal process.

If you are interested in learning more about this topic, or if you have been served with legal process relating to the TCPA, please e-mail us at 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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