Seventh Circuit Affirms Class Action Holding Fax Was Advertisement

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A class action complaint was filed against Defendant who sent 8,430 faxes to more than 200 people containing business advise. The trial court granted judgment against Defendant in the amount of $4,215,000, which Defendant appealed. Rejecting any argument that a fax recipient must actually print a fax or have otherwise experienced monetary loss to state a claim, the Court stated that the TCPA provides a $500 penalty for annoyance adding that even a recipient who gets the fax on a computer and deletes it without printing experiences some loss; “the value of time necessary to realize that the inbox has been cluttered by junk.” The Court also stated that “[t]o the extent that Turza contends that each recipient must prove that his fax machine or computer received the fax, he is right on the law but wrong on the facts” since the record established which transmissions were received, and which were not.

The Court then went on to address whether Defendants’ fax actually constituted an unsolicited advertisement, stating that such advertisements are defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” Noting that about 75 percent of the space in the fax was devoted to mundane advise, and the remainder contained Defendant’s name, address, logo and specialties, the fax was deemed no less an advertisement. Specifically, while Defendant claimed that 25 percent of the fax alerting potential clients to the availability of his services was “merely incidental” to the 75 percent that delivered business advise, the fact that 75 percent of the page was not an ad did not detract from the fact that the fax contained advertisements. As the Court noted, ”If Macy’s faxes potential customers a page from the New York Times that is devoted 75% to news about international relations and 25% to an ad for goods on sale at Macy’s, it has sent an advertisement.”

Ira Holtzman v. Turza, No. 11-3188, 11-3746, 2013 WL 4506176 (7th Cir. Aug. 26, 2013)

Topics:  Advertising, Class Action, Faxes, Penalties, Spam, TCPA, Unsolicited Faxes

Published In: Communications & Media Updates, Consumer Protection Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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