
Robert E. Levy
Partner
201-896-7163 rlevy@sh-law.comFirm Insights
Author: Robert E. Levy
Date: December 7, 2017

Partner
201-896-7163 rlevy@sh-law.comA business supply company could be on the hook for $17 million in damages after a New Jersey federal judge found that it violated the Telephone Consumer Protection Act (TCPA). According to the lawsuit, Invecor, LLC, which does business as AMB Business Supply, sent thousands of unsolicited faxes.

While many might ask, who still uses fax machines? The answer is that a surprising number of businesses still rely on the older technology. Even if they don’t frequently send faxes, many businesses keep the machines “online.” As a result, faxes remain a popular means of advertising for many companies seeking to target business clients.
For businesses that rely on fax marketing, it is essential to understand the TCPA’s requirements. The TCPA is a federal statute that prohibits the use of “any telephone facsimile machine, computer, or another device to send, to a telephone facsimile machine, an unsolicited advertisement․”
The statute contains three key exceptions: (1) if a prior business relationship exists between the parties; (2) if the recipient voluntarily makes its fax number available for “public distribution”; or, (3) if the advertisement contains a notice informing the recipient of the ability and means to avoid future unsolicited advertisements. Running afoul of the TCPA can be costly because the statute authorizes statutory damages of $500-$1,500 per violation, regardless of the actual damages suffered by the recipient.
On January 24, 2007, Sparkle Hill, Inc. received an unsolicited telephone facsimile on its fax machine from the defendant, Invecor, LLC. The fax was an advertisement selling cash register and credit card paper rolls. Based on this fax, Sparkle Hill filed a lawsuit alleging a violation of the TCPA. The class-action suit seeks $17 million in statutory damages, which reflects the $500 statutory damages for each of the 34,000 faxes sent to nonconsenting recipients.
In a recent decision, U.S. District Judge Noel Hillman rejected Invecor’s argument that it should not be held liable under the TCPA because a third-party vendor sent the unsolicited faxes that failed to include the required opt-out information. As the court noted, companies whose services who are advertised in an unsolicited fax, and on whose behalf they are sent, may be held strictly liable under the statute even though they did not physically send the faxes.
The only issue remaining in the suit is damages, which Judge Hillman declined to address without information regarding how many class members opted out of the class-action suit, and how many members may have suffered harm beyond the $500 statutory damages. Ultimately, Invecor may get a reprieve from paying the full $17 million, as Judge Hillman asked the parties to consider whether the court should adopt the approach considered in City Select Auto Sales v. David/Randall Associates. In that case, the court asked the parties to determine whether a lower damage award would make the approved class members whole. The judge in City Select Auto Sales specifically suggested that if the typical response rate to a notice of class claims is estimated to be 15 percent, a judgment of 15 percent of $22 million may suffice.
As discussed in a prior post, TCPA violations are attractive to plaintiffs’ class-action lawyers because the law authorizes significant statutory damages. Accordingly, New Jersey businesses should avoid sending out advertisements via fax unless you have a pre-existing business relationship with the recipients. In addition, it is also wise to review any new advertising campaign with experienced counsel and investigate any potential marketing firm that may act on your behalf.
Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Robert Levy, at 201-806-3364.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

When a company enters Chapter 11 bankruptcy, many assume the process will culminate in a lengthy reorganization plan. However, distressed businesses are increasingly being sold through a different mechanism — a sale under Section 363 of the United States Bankruptcy Code. A Section 363 sale allows a company, as a debtor-in-possession in bankruptcy, to sell […]
Author: John D. Giampolo

Before buying property, it is critical to determine whether local zoning laws may affect your plans. If you plan to redevelop the property, you will want to confirm that local zoning regulations permit development as intended. If acquiring property that is already developed, you must verify that the use is permitted in the underlying zoning […]
Author: Wendy Rubinstein Quiroga

For parents of a child with a disability, estate planning raises concerns that go well beyond deciding who will inherit their assets. Parents may spend years making sure their child has the right care, services, and support. Eventually, they must also confront a difficult question: Who will take over when they can no longer do […]
Author: George McGowan

Before buying a New Jersey rental property, an investor should verify realistic operating numbers, the property’s legal and regulatory status, lead-based paint and flood compliance, the existing leases and tenant protections, and the right ownership structure. A rental property is more than a piece of real estate; it is an operating business subject to legal, […]
Author: Donald M. Pepe

In New Jersey, an irrevocable trust can sometimes be modified even though its name suggests otherwise, and one of the primary tools for doing so is a process called decanting. Whether decanting is available depends on the specific terms of the trust and the discretion given to the trustee. Key takeaways: New Jersey has no […]
Author: Marc J. Comer

Intellectual property valuation determines the monetary value of a business’s IP assets, and it drives outcomes in licensing deals, joint ventures, mergers and acquisitions, financing, and ownership disputes. The most valuable assets of a business are often the things that cannot be seen or touched: a proprietary process, a copyrighted work, brand recognition, or the […]
Author: Jay McDaniel
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!