A federal judge in Missouri gave a green light to a lawsuit filed by customers and potential customers of Costco. The judge ruled that the recipients of junk faxes from Costco could proceed on their claims as a class action. The ruling is a big victory for victims of junk faxes and robo telemarketing calls.
For several years, Costco is alleged to have sent out hundreds of unwanted (junk fax) messages that did not contain the required opt out language. The faxes were used to drum up new business for the discount retailer.
Costco Sued Under TCPA
In 2015, Costco was sued under the Telephone Consumer Protection Act (TCPA). That law makes it illegal to make unsolicited robo calls. It also prohibits unsolicited faxes. There are exceptions for faxes if they were sent with the consent of the recipient or have a clear, easy method to opt out.
Individual Junk Fax Complaints Hard to Prosecute
After filing their lawsuit, the plaintiffs asked that the case be certified as a class action. It is often not cost effective for a single victim to sue a large corporation for an unwanted phone call or fax. There is strength in number, however, which is why most TCPA complaints seek class action status.
Costco sought a ruling from the court dismissing the class portion of the complaint. As a class action, anyone receiving a junk fax from Costco could be included in any relief or damage award. Costco wanted to force each recipient to file suit individually. The company believed that most people would no longer have a fax sent years ago and couldn’t even prove ever having received one.
The court ruled that the class could be certified even though most class members can’t prove they received the faxes. “To evaluate standing under the TCPA, viewing or printing a fax advertisement is not necessary to suffer a violation of the statutorily-created right to have one’s phone line and fax machine free of the transmission of unsolicited advertisement… [T]here is no need for a plaintiff to have printed the fax ad” [to participate in the class].
Most appeals courts in the country follow the logic of the court in this case. The mere sending of an unsolicited fax is enough to trigger the Telephone Consumer Protection Act. It is the act of sending the fax that violates the law, not the receipt of the fax. Since most people throw out junk faxes, companies that send them could easily escape liability if a claimant had to prove receipt of the fax.
The plaintiffs in this case demonstrated that they had at least 1500 names of people who had been sent unsolicited faxes from Costco. The company is best able to tell who were sent faxes and how many were sent. Now that the court ruled that a class exists, Costco will be required to turn over whatever mailing lists they have.
Update: Ultimately the evidence revealed that there were 1,537 members of the class. Two later opted out meaning they decided to pursue their own individual cases. Costco said that there was no proof that anyone actually received an unsolicited fax. Despite the difficulties in proving exactly how many unsolicited faxes were sent, it was more economical to simply settle.
Given the relatively small number of people who were allegedly sent a junk fax, the parties settled for $249,316.97 plus legal fees.
Class Action Is the Best Way to Prosecute Junk Fax Cases
In allowing the Costco TCPA lawsuit to proceed, the court noted that a “class action was a superior method of adjudication.”
Under the TCPA, a person who receives an improper telemarketing call or junk fax can receive $500. (The amount can be tripled to $1500 if the fax or calls were made in willful violation of the law.) Unfortunately, for individual plaintiffs, there are no statutory legal fees available. The court properly concluded that acting individually, it would be impossible for most members of the public to sue Costco. In the words of Judge Bough, “class members would spend more money to litigate their suits than what they can individually gain.”
Costco attempted to argue that individual plaintiffs could sue in small claims court but Judge Bough was unmoved. “In regard to Defendant Costco’s assertion that aggrieved parties can simply seek relief in small claims court… the filing/service fees and time spent on an individual action may exceed the $500 penalty and still be economically unfeasible for many class members.”
The court also found that bringing hundreds or thousands of individual lawsuits would be a drain on judicial resources and a waste of the court’s time.
MahanyLaw – We Prosecute Junk Fax and Robo Calls
Everyone hates getting that unwanted telemarketer call in the middle of dinner or the big game. Thankfully, Congress has passed legislation making those calls and junk faxes illegal. Use of an auto dialer (robo calls), unsolicited faxes and telemarketing calls to cell phone numbers are severely restricted.
If you have received one of these calls, let us know. Each call or fax is a violation and if you have previously told the company to stop, the penalties could be tripled.
To bring a complaint under the TCPA, we need to know who made the call (name of business), the date and time, verification that the call was unsolicited or involved the use of an autodialer and whether you were given an opportunity to opt out.
For more information contact attorney Brian Mahany at . Please, we receive many inquiries per day by telephone. Your inquiries are important and every inquiry is reviewed by a lawyer. Unfortunately, we cannot accept TCPA inquiries by telephone as the typical class has thousands of members. Thank you for your understanding.