- On November 19, 2010, the Court of Appeals of Ohio affirmed the grant of summary judgment to marketer Fernandez Discipline, LLC in connection with a fax recipient’s suit alleging that Fernandez violated the Telecommunications Consumer Protection Act (TCPA) and Junk Fax Prevention Act (JFPA) by sending an allegedly unwanted fax. In May 2006, Fernandez sent a two-page fax to a chiropractor advertising an upcoming seminars including one on chiropractor marketing. Four and a half months later, Fernandez received a letter from the chiropractor’s attorney claiming that the fax violated the TCPA and offering to settle the claim for $3,000. Two years later, Cardinal Partners, a party that jointly used the fax number in question, brought a class action suit against Fernandez in Ohio state court. The trial court dismissed the case because the defendant’s fax to the chiropractor fell within the “established business relationship” exemption from TCPA liability, and it was sent two months before the FCC’s JFPA-related rules requiring an opt-out notice became effective in August 2006. Rejecting the appellant’s argument that the TCPA’s “established business relationship” exemption only applied to telephone calls, and not faxes, the Ohio appellate court affirmed the trial court’s ruling, finding the FCC’s comments on the topic sufficient to receive Chevron deference. The court also found that the defendant’s evidence of the business relationship, which included a series of related seminars that the fax recipient had attended, was sufficient to support application of the exemption. Cardinal Partners, Ltd. v. Fernandez Discipline, LLC, No. L-10-1180.
- On November 18, 2010, the United States Court of Appeals for the Ninth Circuit reversed the California federal district court that had denied Verizon’s request to remove a putative consumer class action to federal court. The plaintiff, Dolores Lewis, filed the class action in California state court in December 2009, claiming that Verizon had improperly billed her and others for “premium content,” such as weather reports and sports scores delivered through her landline phone, that she had never ordered. Verizon sought to remove the class action to federal court under the Class Action Fairness Act, which allows class actions otherwise grounded in state law to be removed to federal court where the amount in controversy exceeds $5 million. Verizon had submitted an affidavit claiming that the total charges from the relevant third-party billing aggregator exceeded $5 million. The plaintiff argued that Verizon improperly placed the entire amount of the third-party aggregator’s charges in issue to justify exceeding the statutory $5 million threshold, and the trial court had agreed that plaintiffs only sought recovery of the “unauthorized” charges, not the total charges. The Ninth Circuit held that, to stay in state court, the plaintiff needed to rebut Verizon’s evidence that something less than $5 million was actually at issue: “the Defendant has put in evidence of the total billings and the Plaintiff has not attempted to demonstrate, or even argue, that the claimed damages are less than the total billed. Indeed … the Defendant has conceded that where proposed class members have been billed for services they did not order, they are entitled to a refund. Hence, on this record, the entire amount of the billings is ‘in controversy.’” The case now will be litigated in federal court. Lewis v. Verizon Commc’ns, Inc., No. 10-56512 (9th Cir.).
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In the courts
- Arent Fox LLP
- Ross A. Buntrock , Jonathan E. Canis , Alan G. Fishel , Michael B. Hazzard , Stephanie A. Joyce and Jeffrey E. Rummel
- November 29 2010
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