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Just The Fax Ma'am. Junk Fax Senders Catch a Big Break


The Junk Fax Prevention Act (“JFPA”) is a federal law that provides for damages of a minimum of $500.00 when a party sends an unsolicited advertisement to a person’s fax machine. The JFPA is a strict liability statute and, even if a fax was unintentional, courts, up until recently, were required to award damages of a minimum of $500.00 per page. Many businesses have been forced out of business as a result of the JFPA. A recent United States Supreme Court case could change the manner in which JFPA lawsuits are litigated.

In Spokeo, Inc. v. Robins, the plaintiff, Thomas Robins (“Robins”), alleged that Spokeo, Inc. (“Spokeo”), a web-based service that provides information about a person’s background, violated the Fair Credit Reporting Act (FCRA) when it reported inaccurate information about him. 136 S. Ct. 1540, 1544 (2016). The federal district court dismissed Robins’ lawsuit as a result of lack of standing, and an appeal followed to an intermediary federal appeals court, the Ninth Circuit Court of Appeals, which reinstated the lawsuit. Id. Spokeo appealed the matter to the United States Supreme Court.

Case law dictates that in order to have standing to file a lawsuit under Article III of the United States Constitution, “[a] plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

The Supreme Court looked at the first prong of the three (3) part test, whether Robins had suffered an injury in fact, to determine if Robins had legal standing to file his class action lawsuit. The Court concluded that “a plaintiff must show he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560)). The Court then concluded that Robins could not show that his injury was particularized as, “[f]or an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.”’ Id. (internal citations omitted).

Recently, a federal judge, in Kostmayer Costr., LLC v. Port Pipe & Tube, Inc., cited Spokeo when she dismissed a JFPA lawsuit after the defendant, a small business, sent at least 6 unsolicited faxes to the plaintiff. 2016 U.S. Dist. LEXIS 145947 (W.D. La. Oct. 19, 2016). The judge concluded that the plaintiff “must allege facts to establish a concrete injury, …” Id. at *7. Because the plaintiff had not established a concrete injury as a result of receiving the unsolicited faxes, the judge was correct in dismissing the plaintiff’s JFPA lawsuit.

While it is strongly encouraged that businesses avoid sending unsolicited advertisements to fax machines, if a business is sued for violating the JFPA, Spokeo provides a defense that could result in the JFPA lawsuit being dismissed.

The attorneys and staff at Gill Law Firm focus their practice on debt recovery, small business and nonprofit startups. To find out how we may assist you, please contact us by phone at (561) 454-0301 or via email at awgill@gillattorneys.com.

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