The United States Court of Appeals for the Third Circuit recently upended the legal landscape governing fax marketing by issuing a decision which held that a market research-related fax survey is an advertisement for purposes of the Telephone Consumer Protection Act (“TCPA”).
What are the implications of the Third Circuit’s fax survey decision?
[Read More]December 18, 2017
A fax class action lawsuit in the United States District Court for the Eastern District of Missouri brought under Telephone Consumer Protection Act (“TCPA”) against various marketing entities and their respective individual owners was recently dismissed. In a ruling based on personal jurisdiction, the Court decided that it violated the marketers’ due process rights to force them to defend the fax class action in Missouri without having sufficient contacts with the State.
What were the alleged violations asserted in the fax class action lawsuit?
November 18, 2016
On November 11, 2016, a putative class action complaint was filed against two related pharmaceutical companies alleging violations of the Telephone Consumer Protection Act (“TCPA”). Specifically, the complaint alleges that the pharmaceutical companies sent an unsolicited fax advertisement in violation of the TCPA. The plaintiff has already moved for preliminary class certification. The defendants have yet to appear in the fax marketing class action.
How did the Fax Marketing Campaign Violate the TCPA?
March 18, 2015
On March 12, 2015, a class action lawsuit was filed against Blimpie International, Inc. (“Blimpie”) and other entities, alleging violations of the Telephone Consumer Protection Act (“TCPA”). Specifically, the complaint alleges that Blimpie violated the TCPA by sending unsolicited “junk faxes” to businesses and individuals throughout the country. The plaintiff seeks to certify a class of plaintiffs composed of “[a]ny owner or lessee of a fax machine that was sent one or more faxes in the last four years advertising Blimpie goods or services.”
According to the complaint, a Blimpie franchisee used a fax blasting company by the name of Faxertise, Inc. (“Faxertise”) to send fax advertisements promoting lunch specials “at the West New York Blimpie.” The complaint details that Faxertise advertised that it can be hired to send between 500 and 800 client fax advertisements per day, for a cost of $70 per week. The named plaintiff alleges that between February 19, 2015 and March 12, 2015, he received nine separate unsolicited Blimpie fax advertisements, containing the Blimpie trademark and logo. The fax advertisements contained opt-out notices with a telephone number registered to Faxertise. The complaint seeks nationwide class certification, and unspecified damages for both TCPA and state law conversion violations.
Last year, the United States Court of Appeals for the Ninth Circuit held that the franchisor Taco Bell Corp. (“Taco Bell”) cannot be held liable for alleged TCPA violations by a franchisee. The Ninth Circuit affirmed a dismissal of a TCPA class action against Taco Bell because, among other reasons, the plaintiff did not “present any evidence . . . demonstrating that Taco Bell [Corp.] controlled the actions of [the franchisees] with respect to the campaign.” The class plaintiffs in the Blimpie action will face a similar hurtle in their attempt to hold Blimpie vicariously liable for the alleged junk fax campaign of a New Jersey State Blimpie franchisee.
As we have previously blogged, both federal and state regulators have intensified their enforcement of the TCPA. Additionally, class action litigation concerning the TCPA has increased in recent years. As such, it is critical that businesses and marketers alike understand all of the telemarketing restrictions contained within the TCPA, or risk crippling financial penalties.
If you are interested in learning more about this topic or if you have been served with process concerning the TCPA or your telemarketing 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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