A federal court in Michigan recently rejected a plaintiff’s plea to expand the scope of Telephone Consumer Protection Act (“TCPA”) liability in a fax advertisement class action case. This should come as welcome news to those operating in this space, particularly product manufacturers, as the court put a needed stop to recent creeping TCPA liability seen in cases across the country.
Why did the Court refuse to extend TCPA liability?
In a case involving the marketing of drugs manufactured by Pfizer, Inc. (“Pfizer”), the class action plaintiff argued that Pfizer qualified as a sender of faxes for TCPA liability purposes because its product was listed in the subject fax advertisements. The court, however, rejected this argument, determining that Pfizer had no knowledge of, relationship with, or contact with, the underlying fax marketer itself. The court noted the difference between Pfizer’s experience and that of product manufacturers which hire advertising agencies to send faxes, explaining that for TCPA liability to attach to the entity offering products or services it “must have done something to advertise goods or services.” In granting Pfizer’s motion to dismiss, the court expressed concern about vastly expanding the scope of TCPA liability and the potential for “sabotage liability” in which companies can bankrupt their competitors by sending out thousands of unsolicited fax advertisements promoting their applicable products or services without the competitor’s knowledge.
Protect Your Business from Fax Marketing-Related Liability
We have previously blogged about TCPA-related liability resulting from fax marketing practices and procedures that failed to comply with the mandates of the TCPA and the FCC’s implementing regulations. The nuances contained within these rules and regulations underscore the need for businesses operating in this space to consult with competent counsel prior to engaging in any fax marketing campaign.