With America’s unemployment rate hovering around 8 percent, the last thing this country needs is a statute that kills jobs. But is that what the TCPA is becoming? Recently the Superior Court of Massachusetts weighed in on the issue. Thankfully, common sense prevailed. In its recent decision in West Concord 5-10-1.00 Store, Inc. v. Interstate Mat Corporation, 2013 WL 988621 (Mass. Sup. Ct. March 5, 2013), the court denied class certification in a statewide TCPA class action against Interstate Mat, a five-person family-owned business in Massachusetts. In addition to the state claims against Interstate Mat, plaintiff’s counsel, Anderson & Wanca, filed a nationwide class action against Interstate Mat in federal court. Between the state and federal cases the total exposure to Interstate Map was in excess of $4 million. Yes, you read that correctly. A five-person company which was run by a father and son faced the possibility of complete ruin for allegedly sending a few unsolicited faxes. The TCPA and plaintiffs’ lawyers nationwide, apparently, do not discriminate. Big or small, let’s sue them all.

The court was not impressed. The court observed that “[t]here is no question that the defendant’s potential liability is such that a certification order would have the potential for ‘ruinous liability’ for a small business like Interstate Mat.” The court, seeing this case for what it truly was, denied class certification and noted that the potential liability was wildly disproportionate to the harm and that Anderson & Wanca was the true impetus behind the suit: “Plaintiff’s counsel has used the TCPA as a device for the solicitation of litigation and Rule 23 as a device to generate legal fees in cases in which the attorneys have a far greater interest and stake in certification of a class than the putative class members.”

It seems David beat Goliath again. This time anyway.