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 Dissolve a Corporation in New Jersey: A Step-by-Step Guide post image

How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide

Closing your business can be a difficult and challenging task. For corporations, the process includes formal approval of the dissolution, winding up operations, resolving tax liabilities, and filing all required paperwork. Whether you need to understand how to dissolve a corporation in New York or New Jersey, it’s imperative to take all of the proper […]

Author: Christopher D. Warren

Link to post with title - "How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide"
Gross Lease vs. Net Lease: Understanding the Key Differences post image

Gross Lease vs. Net Lease: Understanding the Key Differences

Commercial leases can take a variety of forms, which is often confusing for both landlords and tenants. Understanding the different types, especially the gross lease structure, is important when selecting the lease that best suits your needs. One key distinction between lease types is how rent is calculated and paid. This article addresses the two […]

Author: Robert L. Baker, Jr.

Link to post with title - "Gross Lease vs. Net Lease: Understanding the Key Differences"
What to Do If You Are Impacted by a Retailer Bankruptcy Part 2 post image

What to Do If You Are Impacted by a Retailer Bankruptcy Part 2

Over the past year, brick-and-mortar stores have closed their doors at a record pace. Fluctuating consumer preferences, the rise of online shopping platforms, and ongoing economic uncertainty continue to put pressure on the retail industry. When a retailer seeks bankruptcy protection, a myriad of other businesses are often impacted. Whether you are a supplier, customer, […]

Author: Brian D. Spector

Link to post with title - "What to Do If You Are Impacted by a Retailer Bankruptcy Part 2"
The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business post image

The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business

Since his inauguration two months ago, Donald Trump’s administration and the Congress it controls have indicated important upcoming policy changes. These changes will impact financial services policies and priorities. The changes will particularly affect cryptocurrency, as well as banking rules and regulations. Key Regulatory Changes in Cryptocurrency For example, in the burgeoning cryptocurrency business environment, […]

Author: Dan Brecher

Link to post with title - "The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business"
Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1 post image

Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1

The retail sector has experienced a wave of bankruptcy filings over the last year. Brick-and-mortar businesses in financial distress include big-name brands like Big Lots, Party City, The Container Store, and Vitamin Shoppe. When large retailers seek bankruptcy protection, they are not the only businesses impacted. Landlords can be particularly hard hit. While commercial landlords […]

Author: Brian D. Spector

Link to post with title - "Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1"

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.

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

Please select a category(s) below: