A federal judge has ruled that an office supply company is liable under the Telephone Consumer Protection Act for sending thousands of “junk” faxes, but the judge stopped short of granting plaintiffs’ request for $17 million in statutory damages.
U.S. District Judge Noel Hillman ruled that Invecor of Troy, Michigan, doing business as AMB Business Supply, is liable for sending more than 34,000 fax advertisements that failed to include opt-out information. The suit was brought by Sparkle Hill, a dry cleaner in Mantua, on behalf of a class of fax recipients that did not have prior business dealings with Invecor.
Hillman rejected Invecor’s claim that it was not liable because it hired a vendor, Business to Business Solutions, to send the faxes, and its claim that the plaintiff failed to prove it directed the vendor to target nonconsenting recipients. Such a defense is explicitly rejected by the TCPA, Hillman said. And a party whose services are advertised in an unsolicited fax, and on whose behalf the fax is sent, may be held strictly liable under the TCPA despite not physically sending it, Hillman said.
Invecor sent out several versions of its fax, some of which had no opt-out language. Others included a toll-free phone number for people who wanted to opt out of future faxes, but failed to comply with the requirement that the sender must state a failure to comply with a request for removal within 30 days violates applicable law, Hillman said.
Class counsel sought summary judgment of $17.3 million, which is the TCPA’s $500 statutory limit for each of the 34,000 faxes sent on behalf of Invecor to nonconsenting parties.
Hillman said he could not rule on that request because plaintiffs have not provided the court with notices from any class members who opted out of the litigation, or notice of class members who suffered damages in excess of the $500 statutory award.
Hillman also ordered attorneys for both sides to confer within 30 days about whether a judgment for a significantly smaller sum would provide full statutory recovery to all class members who responded and filed claims.
He cited City Select Auto Sales v. David/Randall Associates, another junk fax case, in which statutory damages came to $22 million. In that case, the court directed lawyers to confer and consider whether, if the typical yield of the notice of class claims is presumed to be 15 percent, then a judgment of 15 percent of $22 million, or roughly $3.3 million, would suffice. Hillman directed the parties in Sparkle Hill to advise the court whether a similar course should be followed by the parties in the present case.
James Shah, of Shepherd, Finkelman, Miller & Shah in Collingswood, representing the plaintiffs and the class, did not return a call about the ruling. John King, of Thompson, Becker & Bothwell in Cherry Hill, who represented Invecor, also did not return a call.