On November 12, 2015, the United States District Court for the Northern District of Illinois denied Cirque du Soleil’s (“Cirque”) motion to dismiss a pending class action brought pursuant to the Telephone Consumer Protection Act’s (“TCPA”) Junk Fax Prevention Act of 2005 (“JFPA”). Cirque argued that the class action, which was commenced on March 21, 2014, was barred on statute of limitations grounds because the allegedly unsolicited fax at issue was sent to the class representative back on July 7, 2009. The Court, however, rejected this argument due to a previous class action litigation brought against Cirque by a different class representative concerning the very same commercial fax broadcast.

Why Didn’t the Court Dismiss the TCPA Class Action against Cirque?

Junk Fax Class Action Against Cirque Survives

Cirque argued that the class action complaint must be dismissed because the class representative did not assert his claim within 4 years after receipt of the subject fax, as prescribed by the TCPA. The Court rejected this argument because a previous class action was asserted against Cirque concerning the very same fax and making the very same allegations. Although that previous class action was voluntarily dismissed by the class representative with prejudice, the Court, relying on Supreme Court and Seventh Circuit precedent, reasoned that “when a plaintiff purporting to represent a class commences a suit, ‘he notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.’” Relying on this argument, the Court held that the previous class action tolled the statute of limitations for the current class action, and the parties must now go forward with discovery.

Protect Yourself

Simple dismissal from a previous class action may not mean a complete escape of liability for TCPA defendants. As such, it is important that dismissals from class action litigation be accompanied, if at all possible, by a release (entered into by the class representative) of all claims on behalf of the class.