Plaintiffs in the junk fax class action pending against Sanofi Pasteur, Inc. and Vaxserve, Inc. (collectively, “Defendants”) filed a motion seeking class certification on Tuesday. The class action concerns over 11 million fax advertisements sent on behalf of Defendants to individuals and companies advertising Defendants’ pharmaceutical products. The motion follows at least three previous failed attempts by Defendants to have the class action dismissed for various procedural reasons. The Defendants are alleged to have acted willfully, thus subjecting them to damages of $1,500 per unlawful fax sent should the plaintiffs’ case prove successful.

What Are the Factual Allegations Against Defendants in the Junk Fax Class Action?

Class Certification Motion in Junk Fax Class Action

According to the motion, between October 2002 and April 2005, “Defendants engaged in a nationwide facsimile-advertising campaign in order to promote the sale of pharmaceutical products.” The contact information of the recipients of the fax advertisements was obtained by the Defendants via the rental of two different lists from a company by the name of List Strategies, Inc. According to the motion, and relying on deposition testimony, Defendants took no measures to determine whether any of the intended recipients actually consented to receiving the fax advertisements at issue. The Defendants hired a third party fax transmission company to send the subject advertisements, which were sent weekly or bi-weekly. According to deposition testimony, Defendants had to obtain permission from Sanofi Pasteur, Inc.’s legal department before the fax advertisements were sent.

In the motion, the Defendants are accused of having received more than 30,000 requests to stop sending facsimiles, and having been sued 19 previous times for alleged Telephone Consumer Protection Act (“TCPA”) violations.

Protect Yourself

We have previously blogged about multi-million dollar judgments awarded in junk fax cases. Damage awards, particularly in cases where class action plaintiffs can prove willful violations of the TCPA, can be crippling for both companies and their respective principals. It is important, therefore, to consult with competent counsel before beginning any fax blast advertising campaign.