Missouri Federal Court Certifies Class in TCPA Fax Case

TCPA Connect

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.



pursuant to New York DR 2-101(f)

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