Sorting Fax from Fiction: Cirque du Soleil Junk Mail Suit to Continue

Cirque du Soleil – the acrobatic circus that plays to packed tents around the world – is known for death-defying leaps and fantastic costumes. The company’s shows are filled with color and make-believe – but right now, something a lot more down to earth is taking up Cirque’s time.

This week, a judge in Illinois rejected the company’s request to dismiss a pending junk mail lawsuit, filed after Cirque allegedly sent unsolicited faxes in 2009. The lawsuit, being heard in the United States District Court for the Northern District of Illinois, alleges that Cirque du Soleil violated the Telephone Consumer Protect Act (TCPA) and the Junk Fax Prevention Act (JFPA) by sending people faxes without their permission. TCPA suits aren’t that rare – the rules were changed recently in consumers’ favor, making it harder than ever for companies to send you junk mail – although the majority of cases involve phone calls and text messages (see, for example, our blogs on cases involving Facebook, TD Bank, or Yahoo and Costco). While it might be news to you that anyone still uses fax machines, Burger King faced a class action lawsuit just last year after faxing out an advertisement without permission.

So, where does Cirque stand, and what exactly is the law about faxes?

The Case is Old – But It’s Not the First

As noted above, the allegedly illegal fax was originally sent in 2009. The plaintiff in the case is Practice Management, a company that says it never gave permission for Cirque du Soleil to fax it anything. Because the statute of limitations – the time period in which a lawsuit can be filed relating to a specific event – has now run out, Cirque filed a motion to dismiss the lawsuit based on the argument that too much time had passed since it sent Practice Management the fax.

Statutes of limitation are often a great trump card in court, but in this case, Judge Thomas M. Durkin rejected the motion. Why? He didn’t question that Cirque had a valid argument – but he did point out that Cirque had faced an identical lawsuit, for an identical junk fax, filed by a different plaintiff. Because that lawsuit had been filed in a timely manner (within six weeks of the junk fax being sent on July 7, 2009), Judge Durkin ruled that “equitable tolling” – the idea that plaintiffs can’t be time-barred if a delay in filing or moving through court is not their fault – applied. Basically, part of the wait was caused by complications stemming from lawsuits filed slightly earlier, but stemming from the same fax. Since those lawsuits had been filed well within the statue, this lawsuit would also be allowed to continue. Make sense? The judge’s order isn’t much clearer, but here’s the gist (bolding our own):

“There is no dispute that First Federal Action, filed just six weeks after the fax at issue was sent, was timely brought [...] In an attempt to circumvent the rule, Defendants argue that because the First Federal Action was brought against different Cirque entities than the ones named here, tolling is improper [...] The argument is disingenuous at best.”

“[T]he TCPA claim in issue here is precisely the same claim that was alleged in the First Federal Action [...] Accordingly, the First Federal Action tolled Practice Management’s claims until April 4, 2012. For these reasons, Defendants’ motion for summary judgment [46] is denied. The same reasoning applies equally to Defendants’ motion to strike [50], which is also denied.”

So, Cirque can’t get out of this suit, and, going back to the judge’s order:

“In the interest of bringing this long-pending dispute to resolution, the Court orders Plaintiff’s class certification brief due December 8, 2015, Defendants’ response due December 29, 2015, and Plaintiff’s reply due January 12, 2016. This case is set for a status hearing on February 9, 2016.”

Junk Faxes – What’s the Law?

The FCC, backed up by the TCPA and the Junk Fax Prevention Act of 2005, has laid down clear rules governing consumer faxes. These include:

• No unsolicited faxes may be sent to personal or business fax machines without express invitation or permission
• Faxes may only be sent by a business if it can prove a “established business relationship” with a consumer, who gave their fax number voluntarily
• All faxes must contain clear opt-out options, in a conspicuous place on the first page of the fax
• Opt-outs must be free and contain a telephone and fax number, and must be honored within 30 days
• Fines of $500 per violation may apply, to be tripled if a court finds a company willingly or knowingly violated the TCPA

Cirque du Soleil may have violated the TCPA by faxing Practice Management – that’s for the judge to decide next February – but whatever the outcome, it seems clear they didn’t follow the rules on junk faxes as closely as they should have. In an increasingly connected and electronic world, these laws are more important than ever, saving consumers from being overwhelmed by unwanted advertisements, and giving them the clout they need to fight fax-happy companies.