Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: Unsolicited fax could violate TCPA, not Consumer Fraud Act, (Jul 22, 2014)

By Greg Hammond, J.D.

A physician sufficiently alleged a Telephone Consumer Protection Act (TCPA) claim against Power Liens, LLC, after receiving a one-page unsolicited fax advertisement from the company. In partially denying Power Liens’ motion to dismiss, the federal district court in Chicago determined that the fax did not fall within the “informational” exception to unsolicited advertisements under the TCPA (Mussat v. Power Liens, LLC, July 21, 2014, Coleman, S.).

Background. Florence Mussat, M.D., S.C. received a one-page unsolicited fax from Power Liens in October 2012. The “time sensitive” stamped message was allegedly part of a marketing campaign attempting to sign up physicians for a preferred listing on the company’s website, in exchange for a monthly fee. Mussat filed a class action, asserting violations of the TCPA and the Illinois Consumer Fraud Act (ICFA), and Power Liens moved to dismiss.

TCPA. The TCPA bans the use of fax machines to send unsolicited advertisements, which are defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.”

In support of its motion to dismiss, Power Liens argued that the fax message falls under the “informational” exception to unsolicited advertisements. However, the court determined that the message was “clearly an offer to make use of Power Liens’ commercial services,” and that the offer was “seeking to establish a relationship rather than a communication made as part of an ongoing relationship.” Consequently, Power Liens’ motion to dismiss the TCPA claim was denied.

ICFA. Power Liens also argued that the physician’s ICFA claim should be dismissed. In determining whether the alleged conduct was unfair, the court considered: (1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; and (3) whether it causes substantial injury to consumers. Ultimately, the court concluded that the three factors weighed in favor of Power Liens, because sending one unsolicited fax does not rise to the level of immoral, unethical, oppressive, or unscrupulous practices contemplated by the ICFA, and there was no substantial injury to consumers. Mussat’s ICFA claim was consequently dismissed.

The case number is 13-cv-7853.

Attorneys: Curtis Charles Warner (Warner Law Firm, LLC) for Florence Mussat, MD, SC. Cheryl Wright Olsen (Juris Law Group) for Power Liens, LLC.

Companies: Power Liens, LLC

Cases: Privacy ConsumerProtection IllinoisNews