Junk Fax Lawsuit Survives Against Burger King
A Maryland federal judge has refused to dismiss a class action accusing Burger King Corp. of sending unsolicited fax advertisements in violation of the Telephone Consumer Protection Act.
Judge Paul Grimm of the U.S. District Court for the District of Maryland denied Burger King’s motion to dismiss the proposed class action or strike the class allegations, according to a court opinion on April 18.
Burger King argued that plaintiff Jay Clogg Realty Group Inc. failed to state a claim under the act because it failed to allege that the faxes were received on an ink-and-paper fax machine, and that, in any event, claims under the act can’t be brought as a class action.
Disagreeing, Grimm said that “there is nothing in the TCPA that precludes a class action” and that in fact “the law in this district allows TCPA claims to be pursued as class actions.”
Even though the plaintiff didn’t expressly allege that it received the faxes on a traditional in-and-paper fax machine, Grimm said, “common sense” demanded hearing the case. The “natural conclusion reasonably inferred from Plaintiff’s allegations is that it received the Facsimile Advertisements on a fax machine.”
The realty group alleged that it received several unsolicited faxes from Burger King advertising its food delivery service. The advertisements didn’t include an opt-out notice as required by the act, the complaint alleged. Potentially thousands of similarly situated persons might have received the faxes, it added.
The plaintiffs seeks to define the relevant class as U.S. persons or entities to whom fax ads were sent within four years prior to the filing of the complaint.
Grimm denied plaintiff’s motion for class certification with leave to refile once plaintiff obtains adequate factual support for that motion, saying that “at this time there are no facts in the record that indicate that Defendant’s advertising campaign spanned four years.”