In certain parts of TCPAWorld, the use of the fax machine is alive. And chiropractic-related outreach often seems involved. Still, a seemingly healthy purpose: opportunities to relieve employee stress in these difficult times, does not exempt fax senders from TCPA restrictions on unsolicited ads.
In Levine Hat Co. v. Innate Intelligence, LLC et al., 2021 USA Dist. LEXIS 89737, Case no. 4: 16-cv-01132 SNLJ, U.S. District Court for the Eastern District of Missouri, May 11, 2021, Defendant Innate was an umbrella organization for advertising and managing chiropractic clinics, which operated 12 chiropractic offices. He hired a fax sender, Profax, Inc., to send a fax offering “a FREE lunch and learning about stress management for your employees.” Another defendant, Nepute Enterprises, LLC, was among the chiropractors who partnered with Innate “to facilitate the creation of … on-site wellness programs with companies that responded” to FREE .TS lunch faxes.
Faxes containing the header “” Stressed employees cost your business. Want to know how much, ”identified the“ sender “Innate Wellness Centers” as a “group of wellness consultants dedicated to improving an employer’s health of an employee every time”.[o]Your offices across the country offer proactive education and care about the highest quality well-being and care on the planet, both on site and in our offices. “
At the bottom of the fax was a warning / deactivation instructions on how to stop receiving future faxes.
Levine claimed the fax was an unsolicited advertisement in violation of the TCPA and filed a class action lawsuit. After a lengthy discovery, the Court’s certification of a class, and failed efforts in the settlement, Levine filed a summary judgment against the three defendants. Only ProFax opposed the motion, arguing that the faxes were not advertisements for TCPA purposes. In addition, in any case, it was only the issuer and did not have a “high degree of involvement” (a standard set by Federal Communications Commission (FCC) rules) in alleged TCPA transgressions.
District High Court Judge Stephen Limbaugh did not buy any arguments from ProFax.
First, he had little trouble concluding that there was an advertisement, noting that in 2006 the FCC had “exposed” that faxes that promoted goods or services even at no cost, such as … free consultations or seminars, are unsolicited announcements The definition of TCPA ‘”(emphasis in original). The FREE Lunch and Learn Apart, the Court noted that the fax “clearly promotes the services offered by innate wellness centers, which are dedicated to the care and education of well-being.” This is advertising.
Second, regarding ProFax’s “involvement” in the process, Judge Limbaugh noted a lack of guidance on what constituted “a high degree of involvement by a fax sender” in the proceedings. alleged illegal transmissions. However, he seized on the fact that ProFax had “provided the entire mechanism for disabling object faxes.” In fact, he had “managed the list of deactivations for Innate, including maintaining a website and a phone number to receive deactivation requests and assigning a unique PIN to identify those who had sent alone. Deactivation requests in response to faxes sent by ProFax by Innate “. The Court concluded that this collective “conduct” was sufficient to constitute a “high degree of legal involvement.”
But Profax is not over. Presumably to reduce his exposure, he had also decided to desert the class approved by Judge Limbaugh, arguing that his “terrible financial circumstances” meant he could not meet the requirement of the federal rule that a “class action is the “superior adjudication method” individually litigated claims. Noting that “issues of law and fact common to class members still predominate[d]”The Court rejected” decertifying a class based solely on the defendant’s financial position. “
Profax then hung his hat on the FCC Consumer and Governmental Affairs Bureau’s (“Bureau”) 2019 declaratory resolution of the Amerifactors Financial Group’s declaratory ruling, which held that “an online fax service that effectively receives faxes “sent as e-mail over the Internet” and not having the capacity of a conventional fax machine fall outside the scope of the TCPA ban. In this regard, ProFax got some points with the Court. and stating that the Office’s decision did not appear to be a “final order” from the FCC, the Court admitted that “some of the more than 10,000 members of the class probably received the subject faxes by e-mail and not on a” machine. telephone fax “. ”In the sense of the TCPA. The parties were therefore ordered to submit additional reports on this subject, with a view to reducing the class.
And what about the other two defendants? – Innate and Nephew – who never responded to Levine’s summary judgment motion. Judge Limbaugh ruled that Innate was clearly the “sender” of the fax based on the information in the document. “As for Nepute, he had a partnership agreement with Innate and” under Missouri law, “the members are responsible for everything the association covers “and the faxes in question” are clearly related[d] to the company with which Nepute and Innate were associated “.
The final result of the TCPA liability: Levine wins the triumphant summary judgment against the three defendants. In addition, the Court provides guidance to fax issuers who might think that helping with deactivation mechanisms is a benign level of involvement in their clients ’fax campaigns.