DINOSAURS: Major Certification Ruling in TCPA Fax Class Action is Bad News for Companies Still Sending Faxes Without Consent

Little known fact– between 1991 and 2011 over 95% of TCPA cases were fax cases.

This is true because normal people read the TCPA’s ATDS definition to only ban random-fire calls during that timeframe. Then along came Vance and a slew of cases applying the FCCs 2003 and 2008 predictive dialer rulings and by 2017 less than 10% of TCPA cases were fax cases.

I don’t report on fax cases very often because, truthfully, I find them kind of dull. (Gees, I sound like Edelson right now.) Or perhaps I just can’t believe people are still sending unsolicited faxes as a means of drumming up business

But, apparently, they are. And a recent ruling out of Missouri shows why that can be so dangerous.

In Brust v. Opensided MRI, 2023 WL 2769912 (E.D. Mo. March 31, 2023) the Court issued a certification order in a TCPA junk fax case that may spell doom for a local company.

In Brust the Plaintiff argued Opensided had sent 7,522 unsolicited fax advertisements. If true, that means Opesided faces a minimum exposure of $3,761,000.00 in the ensuing junk fax class action.

Now $3.7MM may be survivable for some businesses but considering that these guys don’t even seem to have a website, I’m not sure how well they’re going to do if they have to write a check of that size.

Regardless, the Plaintiff moved for certification and the Defendant opposed raising two primary arguments. And the court bought neither of them.

First, Defendant urged that under a recent FCC ruling faxes received by non-traditional fax machines–i.e. those sent to email–were not actionable under the TCPA. The FCC ruling in question–the famous Amerifactors ruling– was issued by the Consumer and Governmental Affairs bureau, however, and was not issued by the Commissioners themselves, or pursuant to formal notice and comment rulemaking. As such the Court determined the Amerifactors ruling was not binding under the Hobbs Act.

Instead the Court looked to the “plain language” of the statute, which it viewed as categorically covering all faxes sent without consent–not just those sent to a “real” fax machine. Bad news. And more is on the way.

Second, the Defendant argued the mere receipt of an unsolicited fax does not cause Article III harm, so there is no standing to sue. For reasons I won’t explain, that’s not as bad an argument as it sounds– some individuals may have wanted the fax (that’s what Defendant was hoping for after all) and obtained the services an been happy about it. These individuals would not have been harmed. So the class is, in fact, overly broad.

But that doesn’t seem to have been the thrust of Defendant’s argument–at least not as presented in the Court’s ruling. Instead the issue was whether a single fax caused harm at all. There the Court looked to binding case law in the Eighth circuit–as in other places–that receipt of a single VM does, in fact, cause actionable harm as a matter of law. (That’s a questionable proposition, but it is still the law.) The Brust court reasoned that if receiving unsolicited VMs necessarily caused harm, so too must receiving unsolicited faxes… so here we are.

The Court certified the case, which leaves the Defendant in deep trouble heading into dispositive motions and trial.

Take aways here are pretty clear:

  1. Do not send marketing faxes.
  2. If you are going to send marketing faxes make sure to have consent.
  3. But really, just focus on rule number one here.

You know what happens to dinosaurs in the end… they go extinct. Its an evolve or die (TCPA)world folks.



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