In Vinny’s Landscaping, Inc. v. United Auto Credit Corporation, 2016 WL 4801276, at *3 (E.D.Mich., 2016), Judge Cox allowed a TCPA-Junk Fax case past the pleading stage against an automobile finance company.
The Sixth Circuit first addressed the issue of whether or not a fax constitutes an advertisement under the TCPA in 2015. See Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc. 788 F.3d 218, 221 (6th Cir. 2015) (“So were these faxes advertisements? It is a question of law our court has never addressed.”). There, the Sixth Circuit determined that summary judgment was appropriate because the faxes at issue were not advertisements for purposes of the TCPA. While the facts in Medco differ from the facts presently before the Court, the Sixth Circuit’s discussion can guide the Court’s analysis here. First, there is no dispute that a fax must advertise something in order to fall within the purview of the TCPA. Id. at 221. The Sixth Circuit has specified that “[a]dvertising is [t]he action of drawing the public’s attention to something to promote its sale…or the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public …” Id. at 221-22 (internal citations and quotations omitted) (emphasis added). Second, the advertisement must be commercial in nature, which means it must have profit as the primary aim. Id. at 222. Accordingly, for a fax to be an ad, it “must promote goods or services to be bought or sold, and it should have profit as an aim.” Id. Here, the Fax informs the recipient of UACC’s new bankruptcy program, which includes: open bankruptcies, no recourse, lower APRs, longer terms and no FICO scoring. (See the Fax). The Fax directs the recipient to “CONTACT YOUR AREA MANAGER TODAY!” and it provides the recipient with UACC’s website. (Id.) (emphasis in original). According to Plaintiff’s complaint, the Fax constitutes an advertisement describing “the commercial availability or quality of Defendants’ goods and services.” Considering the Fax here, together with the allegations in Plaintiff’s complaint, the Court finds that the Fax’s primary purpose could plausibly be construed as promoting the commercial availability of Defendants’ new bankruptcy program. The fact that the Fax itself lists benefits of the program and urges the recipient to contact an area manager permits the Court to infer that it was sent with “profit as an aim,” i.e. with the hope of attracting recipients to the new program. Defendants’ arguments to the contrary are without merit for the reasons set forth below.
The District Court also held that the Plaintiff adequately pleaded a claim against the holding company.