
Dan Brecher
Counsel
212-286-0747 dbrecher@sh-law.comFirm Insights
Author: Dan Brecher
Date: April 13, 2015

Counsel
212-286-0747 dbrecher@sh-law.comThe 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 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 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 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.
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.

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!