As the Czar wrote recently, the FCC’s disastrous solicited fax rule has finally been withdrawn. But that has not prevented the coils of fruitless TCPA class actions seeking to enforce the now unenforceable provision from snaking their way through the court system.
Perhaps the most incorrigible would-be class representative in these cases is Gorss Motels, Inc. Having already lost two certification bids in this context–see Gorss Motels, Inc. v. AT&T Mobility LLC, CIVIL NO. 3:17cv403, 2019 U.S. Dist. LEXIS 24726 (D. Conn. Feb. 14, 2019); Gorss Motels, Inc. v. The Eric Ryan Corp. et al, 3:17-cv-00126-DJS (D. Conn. Mar. 28, 2019)–it just couldn’t help but try for the trifecta. Predictably, it did not go well.
In Gorss Motels, Inc. v. Otis Elevator Co., CIVIL NO. 3:16-CV-1781, 2019 U.S. Dist. LEXIS 58515 (D. Conn. April 4, 2019) the court rejected Plaintiff’s latest certification bid for much the same reasons that the two previous courts had– there is no way to identify members of the class that consented to receive the solicited fax.
As with the dozens of other cases of this type, the case had originally been filed as a putative class action at a time when the FCC’s solicited fax rule was still viable. This meant that the Defendant was per se liable for a TCPA violation if the fax did not contain specific opt out language–and the faxes here allegedly did not–so consent was not an issue. But as soon as Bais Yakkov was handed down, that all changed. Now only unsolicited faxes had to maintain the opt-out language. So whether or not a fax was solicited became the critical issue in these cases. That issue, of course, is one requiring individualized proof. So no certification.
Apparently not realizing that the FCC’s solicited fax rule had been formally withdrawn, the Plaintiff argued that the court should not follow Bais Yakkov and should continue to apply the withdrawn rule. My goodness. What a bad argument. Judge Dooley tolerated the argument, however, and discussed the binding effect of Bais Yaakov in light of King v. Time Warner Cable, Inc., 894 F.3d 473, 476 n.3 (2d Cir. 2018), which confirmed FCC TCPA rulings are still entitled to deference under the Hobbs Act. (We’ll see if that changes soon.)
Bottom line– the solicited fax rule is dead, and bids to certify TCPA classes relying on a missing opt-out language theory are now likely to meet with (repeated) failure.