A federal court in Missouri granted class certification in a
Telephone Consumer Protection Act (TCPA) action that could cost the
defendant almost $4 million for allegedly sending unsolicited
faxes.
Two doctor’s offices filed a class action lawsuit against
Opensided MRI of St. Louis alleging violations of the TCPA. The
plaintiffs alleged that between April and June of 2020—during
the early months of the COVID-19 pandemic and at the height of the
related shutdowns—Opensided sent faxes to certain members of
the St. Louis medical community alerting them it was open and its
imaging services were available while other radiologic providers
were closed.
On a total of five days, Opensided allegedly caused 7,522
unsolicited fax advertisements to be sent to approximately 1,583
fax numbers, including those belonging to the plaintiffs, according
to the complaint.
One of the named plaintiffs (Phillip Brust) alleged that he
received the faxes on a traditional stand-alone facsimile machine,
while the second (Alan Presswood) received the faxes via an online
fax service.
The plaintiffs moved to certify either one class of recipients
or, in the alternative, one class of recipients of faxes sent to
stand-alone fax machines and a second to online fax services.
Opensided objected, arguing that online fax users do not have
claims under the TCPA pursuant to the 2019
Amerifactors decision (https://www.manatt.com/insights/newsletters/tcpa-connect/tcpa-doesnt-cover-online-fax-services-fcc-rules)
issued by the Federal Communications Commission’s (FCC)
Consumer and Governmental Affairs Bureau, and that they lack
Article III standing.
U.S. District Court Judge Sarah E. Pitlyk disagreed.
Although the FCC did hold in 2019 that the TCPA applies only to
traditional fax machines that print on paper, the U.S. Circuit
Court of Appeals, Eighth Circuit has not addressed the issue, and
the application of the statute to online fax services has divided
federal courts, Judge Pitlyk acknowledged.
Instead, she looked to the Sixth Circuit, where a panel weighed
in on the issue in Lyngaas, D.D.S. v. Curaden AG, holding
that the scope of the TCPA encompasses more than a traditional fax
machine and does not require the actual printing of the
advertisement.
Finding the Sixth Circuit’s ruling persuasive—and
noting that she was not required to defer to the FCC’s
interpretation where the court’s construction followed from the
unambiguous terms of the statute—Judge Pitlyk said
Amerifactors was not a controlling final decision. (We
note that other courts have disagreed on this point, and the Sixth
Circuit authority is perhaps not as clear as Judge Pitlyk seems to
believe.)
The court also found Article III standing, as the plaintiffs
alleged that the receipt of five unsolicited faxes disrupted their
business by wasting the time of employees and violating their
rights to privacy and interest in seclusion.
In the Eighth Circuit, a plaintiff has Article III standing to
pursue a TCPA claim based on the receipt of two unsolicited phone
calls pursuant to Golan v. FreeEats.com, Inc.
“Here, putative class members similarly received multiple
faxes that they allegedly did not previously consent to,” the
court wrote. “The court finds this bears a close resemblance
to the receipt of the two short answering machine messages in
Golan. … [T]he Eighth Circuit focused on unwanted
intrusion and nuisance, both of which are similarly caused by
unwanted faxes. The court has no reason to believe the Eighth
Circuit will reach a different conclusion when the harm is based on
unwanted fax advertisements instead of unwanted voicemail
messages.”
Working her way through the Federal Rule of Civil Procedure
23(a) requirements for class certification, the court determined
the plaintiffs satisfied the need for numerosity (with more than
3,000 putative class members), commonality, typicality and
adequacy. As for Rule 23(b)(3), Judge Pitlyk found that common
issues predominated in the case, as the common facts related to the
defendants’ course of conduct and the transmissions of the
faxes.
To read the memorandum and opinion in Douglas Phillip Brust,
D.C., P.C. v. Opensided MRI of St. Louis LLC, click here.
Why it matters: While fax cases under the TCPA
are increasingly uncommon given that it is an antiquated technology
used mostly by doctors, veterinarians and others in the medical
field, this decision provides a reminder that the statute may apply
to online fax services and that the receipt of multiple faxes may
trigger Article III standing for recipients. Again, the law in this
area is mixed, and other courts have ruled differently.
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