N.J. Appellate Division Refuses to Certify Class Action Under Telephone Consumer Protection Act; Finds Class Certification Is Not a Superior Method of Proceeding

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In a case of first impression, the New Jersey Appellate Division recently held that a single plaintiff could not prosecute a class action to enforce the provisions of the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (2011). Although the decision concerns that specific statute only, its reasoning may impact other putative class actions based on similarly structured statutes.

In Local Baking Products, Inc. v. Kosher Bagel Munch, Inc.,1 Local Baking Products ("Plaintiff") received an unsolicited facsimile from Kosher Bagel Munch ("Defendant") advertising its restaurant in Passaic, N.J. The fax actually came from a third party, Business to Business Solutions, which sent the same fax to 4,649 other fax machines in an advertising technique known as "blast faxing." In response, Plaintiff filed a complaint against Defendant for violation of the TCPA. Among other things, the TCPA prohibits the use of any device to send "to a telephone facsimile machine, an unsolicited advertisement . . . ." 47 U.S.C. § 227(b)(1)(C). The TCPA provides for, among other remedies, a "[p]rivate right of action" and assigns damages for each violation at $500 or actual damages, whichever is greater. Id. § 227(b)(3). The complaint asserted a TCPA cause of action on behalf of all recipients of unsolicited faxes from Defendant within the previous four years.

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