In BPP v. CaremarkPCS Health, L.L.C., No. 21-3791, 2022 U.S. App. LEXIS 31586 (8th Cir. Nov. 16, 2022), the Court of Appeals clarified the rules for “unsolicited advertisements” under the TCPA fax rules. We disagree with BPP's proposed interpretation of unsolicited advertisement. HN3 The TCPA does not ban all faxes that contain information about commercial goods or services, as BPP… Read More
The procedural history in True Health Chiropractic Inc. v. McKesson Corp., No. 13-cv-02219-HSG, 2020 U.S. Dist. LEXIS 242297 (N.D. Cal. Dec. 24, 2020) is a handful, but sets the stage for Judge Gilliam’s ruling. Defendants were ordered to identify "each type of act that Defendants believe demonstrates a recipient's express permission to receive faxes (e.g. completing a software registration), (2)… Read More
In Mauthe v. Nat'l Imaging Assocs., No. 18-2119, 2019 U.S. App. LEXIS 11232 (3d Cir. Apr. 17, 2019), the Court of Appeals for the Third Circuit found that a fax was not a solicitation for goods and services. Moreover, the fax did not tell Mauthe that he [*7] could purchase healthcare management services from defendant or direct him to a website… Read More
In Brodsky v. HumanaDental Insurance Co., 2018 WL 6295126, at *5–6 (7th Cir. 2018), the Court of Appeals for the Seventh Circuit denied class certification in a TCPA Blast-Fax case. We agree with the D.C. Circuit (and the Sixth and Ninth) that, at a minimum, it is necessary to distinguish between faxes sent with permission of the recipient and those… Read More
In Supply Pro Sorbents, LLC, v. RingCentral, Inc., No. 17-16528, 2018 WL 6068590 (9th Cir. Nov. 16, 2018), the Court of Appeals for the Ninth Circuit in an unpublished case affirmed the dismissal of a TCPA claim against an online fax service. Defendant RingCentral, Inc. (“RingCentral”) operates an online service that allows its customers to send faxes using a cover sheet… Read More
In Fulton, D.D.S., v. Enclarity, Inc., No. 17-1380, 2018 WL 5726133 (6th Cir. Nov. 2, 2018), the Court of Appeals for the 6th Circuit concluded that a fax sent to the dentists' office could constitute an “advertisement” that subjected the fax to the TCPA. Fulton alleged that the fax was a pretext to obtain both “participation in Defendants’ proprietary database”… Read More
In Sawyer v. KRS Biotechnology, 2018 WL 2425780 (S.D. Ohio 2018), Magistrate Judge Bowman denied class certification in a junk-fax TCPA class action. Although the defendant’s V.P. Of sales was unfamiliar with the TCPA before the litigation and the defendant had no formal records documenting individualized consent to send the faxes, Judge Bowman found that individual questions of consent predominated.… Read More
In Menachem Raitport and Crown Kosher Meat Market, Inc. v. Harbour Capital Corporation, 2018 WL 2186469, at *4–6 (D.N.H., 2018), Judge McAuliffe found that he was bound by the DC Circuit's ruling on the FCC's Solicited Fax Rule, not the FCC's Rule itself. Raitport argues that “this Court lacks the jurisdiction to follow the D.C. Circuit’s decision [in Bais Yaakov]… Read More
In Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 2018 WL 1021225, at *2–4 (C.A.4 (W.Va.), 2018), the Court of Appeals for the 4th Circuit held that the Hobbs Act prevented the District Court from side-stepping the FCC's Rules. The question presented is whether and when a fax that offers a free good or service constitutes an advertisement under… Read More
In Etter v. Allstate Insurance Company, 2017 WL 6594069, at *4–5 (N.D.Cal., 2017), Judge Alsup denied certification of one TCPA blast-fax case due to lack of class representative's standing, but granted certification of a second class. As to the standing issue, Judge Alsup found that: Etter cites various decisions for the proposition that “awareness” of an offending transmission is unnecessary to establish… Read More
In St. Louis Heart Center, Inc. v. Nomax, Inc., 2017 WL 1064669, at *2 (E.D.Mo., 2017), Judge White dismissed a TCPA class action because the class representative lacked standing. The Court agrees that SLHC has not alleged a concrete and particularized injury arising from the alleged deficiency in the opt-out notice. Spokeo,, 136 S. Ct. at 1548. Further, the Court… Read More
In Physicians Healthsource, Inc., v. Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Medica, Inc., 2017 WL 461002, at *4 (2d Cir. 2017), the Court of Appeals for the Second Circuit put some meat on the bones of whether a fax offering a "free seminar" triggers the TCPA. Requiring plaintiffs to plead specific facts alleging that specific products or services would… Read More
In West Loop Chiropractic & Sports Injury Center, Ltd. et al., v. North American Bancard, LLC et al, 2017 WL 404896, at *1–2 (N.D.Ill., 2017), Judge Gilbert allowed TCPA discovery in a blast-fax case as to other faxes besides those that the Plaintiff received. The Court agrees with Plaintiffs that the information they seek is relevant to a decision concerning the… Read More
In S & A Tire and Auto, Inc. v. A.U.L. Corp., 2017 WL 345078, at *2 (E.D.Mo., 2017), Judge Nocell refused to dismiss a TCPA blast-fax case on the grounds that the invitation for on-line participation constituted advertisement under the TCPA. When viewing the facts pled by plaintiff in the light most favorable to plaintiff, they are sufficient to state… Read More
In Comprehensive Health Care Systems of Palm Beaches, Inc. v. Vitaminerals VM/Orthopedics, Ltd., 2017 WL 27263, at *4–6 (N.D.Ohio, 2017), Judge Burke dismissed a TCPA blast-fax against a defendant on whose behalf the fax allegedly was sent. Hygenic submits that these allegations are insufficient to state a claim that Hygenic is liable under the TCPA because the Amended Complaint generically lumps… Read More
In Bridging Communities, Inc. v. Gamble Plumbing and Heating, Inc., individually and as the representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. TOP FLITE FINANCIAL INCORPORATED, Defendant-Appellee., 2016 WL 7241401, at *4–5 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit found that common questions predominated in a TCPA blast-fax class action, and reversed the District… Read More
In ARcare v. IMS Health, Inc., 2016 WL 4967810, at *3 (E.D.Ark., 2016), Judge Holmes dismissed a TCPA blast-fax case on the basis that the faxes were not "advertisements. Accepting the complaint's allegations as true and drawing all inferences in ARcare's favor, the Court concludes that the faxes in dispute are non-commercial messages that fall outside that TCPA's ban on… Read More
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… Read More
In Alpha Tech Pet, Inc. v. Lagasse, LLC, 2016 WL 4678316, at *3–5 (N.D.Ill., 2016), Judge Durkin denied a motion to dismiss a blast fax case, finding that the faxes plausibly were advertisements. Here, all four faxes Defendants contest are plausibly advertisements. The March 15 and February 15 faxes provide the prices for certain goods and encourage customers to investigate… Read More
In Shaun Fauley v. Drug Depot, Inc., 2016 WL 4591831, at *3 (N.D.Ill., 2016), Judge Kendall allowed a TCPA blast-fax class action past the pleadings stage based on post-Spokeo standing. Based on that holding, APS contends that the Complaint should be dismissed as it is alleges nothing more than a procedural violation of the TCPA. (See Dkt. No. 40 at… Read More
