On January 27, 2016, a putative class action lawsuit was filed against a number of insurers, including Banner Life Insurance Company and William Penn Life Insurance Company of New York (collectively, the “Insurers”), alleging that they had violated federal and New Jersey State junk-fax laws. Specifically, the plaintiff asserts claims pursuant to the Telephone Consumer Protect Act (“TCPA”), as amended by the Junk Fax Prevention Act of 2005 (the “JFPA”), and the New Jersey Fax Statute. Although none of the defendants have made an appearance in the TCPA class action, plaintiff has already filed a motion to certify a class.

How are the Insurers Alleged to have Violated the TCPA?

According to the complaint, the plaintiff, a New Jersey state limited liability company, received an allegedly unsolicited fax advertisement from the Insurers on February 21, 2013. According to the complaint, the fax advertisement sent by or on behalf of the Insurers is missing statutorily required “opt-out” language, in violation of the JFPA provisions of the TCPA. The plaintiff seeks to certify a class of:

All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) which Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice.

In the TCPA class action complaint, plaintiff makes the allegation that any prior permission the Insurers may have had was negated by the sending of a fax without proper opt-out language. The Insurers have until March 7, 2016 to oppose the plaintiff’s pending motion for class certification.

Protect Yourself

As we have previously blogged, the TCPA does not apply to informational faxes. However, the fax at issue in this case was clearly commercial in nature. We will provide further updates as the Insurers appear in this TCPA class action.

If you are interested in learning more about this topic, please visit the Telemarketing Law practice area of our website. If you have been served with process concerning the TCPA or your telemarketing practices, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.