In a fax lawsuit involving allegations against AT&T Mobility LLC and AT&T Mobility National Accounts LLC (“AT&T”) for violation of the Telephone Consumer Protection Act (“TCPA”), a federal judge in the United States District Court for the District of Connecticut recently denied a motion for class certification brought by the former corporate owner of a Super 8 Motel, a franchisee of Wyndham Hotel Group (the “Franchisee”).

Why was class certification denied in this fax lawsuit?

This fax lawsuit originated from faxes advertising discount cellular telephone services sent by AT&T to franchisees of Wyndham Hotel Group. The contact information used to send those faxes came from the franchisees themselves which, according to AT&T, was provided with the expectation that AT&T would contact them at such fax numbers. Notwithstanding this fact, the Plaintiff Franchisee sought to certify a class of AT&T fax recipients alleging that the subject faxes failed to comply with statutory and regulatory opt-out requirements.

The Court was not persuaded that this was an appropriate case to certify as a class action. Specifically, in reaching its decision, the Court cited to binding precedent established in the 2017 D.C. Circuit Court of Appeals decision in Bais Yaakov of Spring Valley v. FCC, in which the Solicited Fax Rule was invalidated. The D.C. Circuit Court had ruled in that proceeding that the FCC did not have the necessary authority to require opt-out notices on solicited fax advertisements. Given this authority, the legality of the opt-out notices at issue in the present matter, according to the Court, depends on whether or not the subject fax that each franchise received was solicited. Due to the fact that individual inquires would be required to determine whether a given fax was solicited, the Court concluded that class certification would be improper.

The Franchisee that brought the fax lawsuit has sought to stay the remaining portions of the action (of which only an individual TCPA claim survived) so that it can appeal the adverse decision to the Second Circuit Court of Appeals.

Protect Your Business from a TCPA Fax Lawsuit

We have previously blogged about TCPA-related liability resulting from non-compliant fax marketing practices. As readers of this blog are well-aware, the TCPA regulatory mandates are intricate, nuanced, and technical. As the marketing industry has learned, the cost of non-compliance with these mandates can be devastating. Accordingly, it is imperative that businesses operating in this space work closely with knowledgeable counsel prior to engaging in any fax marketing campaign.