On August 22, 2016, the United States District Court for the Northern District of California denied a motion for class certification in a putative class-action lawsuit alleging violations of the Telephone Consumer Protection Act (“TCPA”). The plaintiffs, various medical offices, sued the defendants alleging that defendants sent unsolicited fax advertisements for medical billing software without statutorily mandated opt-out notices in violation of the TCPA. In denying the TCPA fax case motion for class certification, the Court observed that “[t]he facts underlying the issue of ‘express permission’ [to send commercial faxes] here are unlike cases in which consent was received through uniform means, thus facilitating generalized determinations under the law.”

Why did the Court Deny Class Certification in this TCPA Fax Case?

TCPA Fax Case Class Certification Denied due to Individualized Determinations of Consent

In denying the motion for class certification, the Court held that “[a]lthough there are some common issues present, including whether the faxes are advertisements and whether the product registration forms constitute ‘express permission,’ the diversity of ways in which Defendants allegedly received permission suggests ‘that the issue of consent should be evaluated individually, rather than on a classwide basis.’” The Court relied on affidavits filed by the defendants’ sales representatives indicating, among other things, that the sales representatives had “numerous conversations with customers over the phone on a daily basis,” and that “it was commonplace for customers to ask [them] . . . to send information by fax, including information on promotions.” Moreover, the defendants’ responses to interrogatories served during discovery indicated that “in addition to the individualized oral and email communications sales team members had with customers, Defendants identified several other methods by which customers could have provided permission.”

Protect Yourself

The importance of obtaining proper TCPA consent, whether for fax transmission, text messaging or telemarketing phone calls, cannot be understated. We recently blogged about an appeal to the United States Supreme Court by a fax marketer that was found liable for $48 million in damages. In this regulatory climate, businesses that communicate with customers or potential customers via automated means must consult with competent counsel prior to embarking on any marketing campaign.