November 6, 2018

fax-TCPA
Fax TCPA Class Action

A judge in the United States District Court for the Northern District of Illinois recently issued a Telephone Consumer Protection Act (“TCPA”) ruling that will make it harder for fax TCPA class actions to succeed.

How has the court made fax TCPA class actions more problematic for plaintiffs?

In an all too familiar tale for those operating in the telemarketing space, this case involved a plaintiff whose alleged receipt of two unsolicited facsimile advertisements was used as the basis for bringing a nationwide class action lawsuit against the business whose services were advertised in the subject faxes.  The defendant was not a resident of Illinois.  The defendant argued that there was a jurisdictional defect with respect to any putative class member asserting a TCPA claim for receipt of a fax outside of Illinois.  For this reason, the defendant moved to strike the class definition to dismiss those claims.

The Court ultimately agreed with defendant and granted the request.  Relying on the recent United States Supreme Court case of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco City, the Court struck the class definition to the extent that the plaintiff sought to assert claims on behalf of non-residents that did not receive faxes in Illinois.  As a matter of constitutional due process, the Court concluded, it would be improper for a court to assert personal jurisdiction over an out-of-state defendant in connection with the claims of non-resident class members when the subject claim has no connection with the state in which the lawsuit is pending.

Protect Your Business from a Fax TCPA Class Action Lawsuit

We have previously blogged about TCPA-related liability resulting from non-compliant fax marketing practices.  The TCPA regulatory mandates applicable to fax marketing are both nuanced and technical.  While this case represents a positive, perhaps even momentous, development in the law insofar as limiting the potential financial exposure of fax-related TCPA violations, those operating in the marketing industry have learned that the cost of non-compliance with these mandates can be devastating.  As such, it is imperative for businesses operating in this space to work closely with knowledgeable counsel prior to engaging in any fax marketing campaign.

If you are interested in learning more about this topic, need to review your facsimile marketing practices and procedures or if you are defending a fax TCPA class action lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information 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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