North Carolina Court Sides with Spammers Against Class Actions

Businesses – and individuals, for that matter – are not fans of spam communication. Whether it’s mail, faxes, phone calls or texts, spam is generally seen as a waste of time and an annoying distraction. Federal laws have clamped down on the practice, with the Telephone Consumer Protection Act (TCPA) making it illegal to contact consumers using an automatic system without their consent. Companies keep doing it, though, and multiple class action lawsuits have been filed alleging that businesses texted, phoned or faxed consumers without their permission.

For some, it’s a victory against frivolous class actions that amount to little more than spam themselves.

Now, a NC court has denied two class action certifications over faxed advertisements. The lawsuits were proposed after two restaurants were accused of using faxes to send advertisements to near 1000 companies and individuals in and around the area. The alleged faxing took place in 2004 and since then a case has been built claiming that 980 others, along with Jonathan Blitz, the lawsuit’s lead plaintiff, received the unwanted faxes. The North Carolina Court of Appeals has turned the lawsuits back, however, saying that plaintiffs don’t have enough in common to make up a class. There’s also no particular proof, the court ruled, that other plaintiffs received the faxes unsolicited.

For some, it’s a victory against frivolous class actions that amount to little more than spam themselves.

Blitz’s complaint was based upon the TCPA, a stipulation of which is that the contact or marketing must be unsolicited. The list of fax recipients was provided by the restaurants’ outside contractor, but the unanimous three-judge panel denied that this was enough to continue the case.

Although the class action route is now blocked, Blitz is still able to file an individual claim – he estimates damages at $500 – if he wishes to.

The TCPA does not simply provide sweeping rights to consumers to launch lawsuits if they do not like a communication they receive. Instead, it is designed to provide specific protections from genuine spam and to protect unsolicited calls and texts that could come from, for example, consumers’ phone numbers being made public and sold as a commodity. It also bans the use of automated dialers and automatic text messages unless the individual has specifically agreed to receive them. The definition of “agreed” can be quite broad – implicit consent can be derived from making a purchase you know will require a receipt, for example – but it also requires that companies provide an opt-out or termination option, such as unsubscribe or a ‘STOP’ function.

For the fax class actions in NC, the matter is settled. Though lawsuits involving the now less commonly used medium of faxing are becoming few and far between, a sharp increase in cases alleging TCPA rules over texting have been broken means that courts across the U.S. will continue to hear similar cases. For judges, the challenge now is to find a workable line between allowing questionable baseless cases to pass through on a technicality, and defending individual’s right not to be bothered by marketers and businesses.