Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

NJ Business Hit With $22 Million Judgment for Sending Unsolicited Facsimiles

Author: Dan Brecher

Date: April 13, 2015

Key Contacts

Back

A New Jersey roofing company is on the hook for more than $22 million dollars in damages for sending unsolicited facsimiles.

The class-action suit alleged that the company violated the Telephone Consumer Protection Act (TCPA) by sending more than 4,000 fax advertisements via a marketing company.

The Legal Background

The TCPA is a federal statute that prohibits the use of “any telephone facsimile machine, computer, or other 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.

The Facts of the Case

The class-action suit alleged that Defendants David/Randall Associates, Inc. (Randall) transmitted unlawful facsimile advertisements 44,832 times to 29,113 different fax numbers, through a third-party entity Business to Business Solutions (B2B). The fax at issue in City Select Auto Sales, Inc. v. David Randall Associates, Inc. stated “ROOF LEAKS??? REPAIRS AVAILABLE,” and directed recipients in “Eastern PA, NJ, and Mid-State DE” to call David/Randall for “the repair and maintenance of most major roofing systems.” The fax stated that the advertisement had been sent to the recipient because some “person” at the recipient’s business “supplied the fax number and permission to send faxes.” It also purported to “a toll free ‘Remove’ number” for recipients to be removed from the distribution list.

Following the first fax blast, which targeted 12,000 recipients, Randall received numerous complaints, many of which stated that the remove hotline seemed ineffective and/or unavailable, and suggested that the advertisements violated applicable law. Randall directed B2B to remove the complaining recipients from any future distribution lists. Despite continued complaints, Randall authorized three additional campaigns. Ultimately, one of the aggrieved recipients, City Select Auto Sales, Inc., filed suit. It was eventually certified as a class action.

The Court’s Decision

The court granted summary judgment in favor of the plaintiffs and imposed a $22,405,000 fine. In reaching its decision, the court found that 1) the defendant utilized a “telephone facsimile machine” to send “one or more faxes;” (2) that the transmissions constituted “‘advertisements;’” and (3) that the defendant sent the transmissions without the recipient’s consent, absent application of one of the statutory exceptions.

The court rejected Randall’s argument that the company had an established business relationship with the recipient and/or obtained the fax number through their website. As noted by the court, “Publishing a fax number on a website does not, by itself, constitute consent to receive unsolicited fax advertisements under the [TCPA].”

The court further found that the advertisements failed to contain a statutorily-compliant opt-out notice because they “contain no statement that the law obligates the sender to comply with any removal requests within a reasonable time, nor do the advertisements provide a toll-free domestic facsimile number for purposes of submitting such requests.” As noted by the court, the faxes provided only a domestic contact telephone number, but no alternative fax number, and did not clearly and conspicuously advise the recipient of its legal right not to receive such unsolicited faces.

The Message for New Jersey Businesses

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
How to Protect Your New Jersey Business When Going through a Divorce post image

How to Protect Your New Jersey Business When Going through a Divorce

The most effective ways to protect your business in a divorce are put in place before one begins: a prenuptial or postnuptial agreement, clean separation of business and personal finances, and divorce contingencies built into your operating or buy-sell agreements. If divorce is already underway, the priorities shift to establishing how the business is classified […]

Author: Jay McDaniel

Link to post with title - "How to Protect Your New Jersey Business When Going through a Divorce"
10 Common Issues in Franchise Disputes post image

10 Common Issues in Franchise Disputes

The most common franchise disputes involve breach of contract, franchise termination and non-renewal, intellectual property rights, territorial encroachment, royalty and fee payments, franchisor support obligations, and violations of state franchise laws such as the New Jersey Franchise Practices Act. Franchisors and franchisees can often resolve these conflicts by providing written notice detailing the dispute and […]

Author: Paul Grossman

Link to post with title - "10 Common Issues in Franchise Disputes"
Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together post image

Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together

New Jersey businesses must manage legal and reputational risk together because modern disputes play out on two fronts at once: the legal proceeding itself and the court of public opinion, where customers, employees, investors, and business partners often reach conclusions long before a judge or jury has had the opportunity to evaluate the facts. Success […]

Author: Sean M. Pena

Link to post with title - "Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together"
Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York post image

Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York

No. An eviction does not automatically end a tenant’s obligation to pay rent. Post-eviction rent claims are common because recovering possession resolves who has the right to occupy the premises, but it does not extinguish the tenant’s contractual obligations under the lease. Whether unpaid or future rent remains owed depends on three factors: the lease’s […]

Author: Donald M. Pepe

Link to post with title - "Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York"
Company Dissolved? Legal and Financial Consequences to Expect post image

Company Dissolved? Legal and Financial Consequences to Expect

A company is dissolved; legally, it ceases to exist. Accordingly, dissolution results in significant legal and financial consequences.  It is a process that must be properly managed to avoid continuing liability. The Corporate Dissolution Process Corporate dissolution is the legal process of formally closing a corporation, paying its debts and distributing the remaining assets. Most […]

Author: Jay McDaniel

Link to post with title - "Company Dissolved? Legal and Financial Consequences to Expect"
The Legal Implications of Signing a Triple Net Lease post image

The Legal Implications of Signing a Triple Net Lease

A triple net lease is a commercial lease in which the tenant pays the property’s real estate taxes, insurance, and maintenance costs, known as the three nets, in addition to base rent. They are most often used in freestanding retail and office buildings and in large single-tenant industrial properties, with terms that typically run 10 […]

Author: Donald M. Pepe

Link to post with title - "The Legal Implications of Signing a Triple Net Lease"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

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!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!