On Thursday, the parties in ARcare, Inc. v. Cynosure, Inc., an action concerning the Telephone Consumer Protection Act (“TCPA”), filed a motion for preliminary approval of a class action settlement of plaintiff’s fax TCPA claims. Specifically, the named plaintiff alleged that it received multiple unsolicited fax advertisements from the defendant which were sent without the prior express written consent of the plaintiff. In addition, the plaintiff alleged that the defendant’s unsolicited fax advertisements were sent without the requisite opt-out notice mandated by the TCPA. The parties’ settlement, according to the recitals contained in the settlement agreement and release, was spurred in part by the United States Court of Appeals for the D.C. Circuit’s review of the Federal Communications Commission rule requiring opt-out notices on fax advertisements.
What are the Terms of the Fax TCPA Class Action Settlement?
According to the parties’ motion for preliminary approval of the fax TCPA settlement, plaintiff’s counsel contends that Cynosure, Inc. (“Cynosure”) attempted to send its fax advertisements to approximately 76,567 different fax numbers between July 27, 2012 and August 2, 2016. Additionally, plaintiff’s counsel estimated that upwards of 800,000 total fax transmittals appear to have been attempted in that time period.
Under the proposed settlement agreement, Cynosure will create a settlement fund of up to $16 million. Class notification will be sent on or about February 14, 2017, with April 17, 2017 being the deadline for proposed class members to file objections. The Court has yet to schedule a final settlement approval hearing.
Protect Against a Fax TCPA Lawsuit
We recently blogged a short informational piece about TCPA compliance for fax marketing. The continued rise in fax TCPA litigation, and the substantial costs of both defending and resolving such lawsuits, underscores the importance of consulting with competent counsel before engaging in any fax marketing campaign.