438 F.Supp.3d 106
D. Mass.2020Background
- Bais Yaakov of Spring Valley (private NY high school) received three faxes from ACT, Inc. on March 5, April 22, and May 13, 2012 about ACT registration deadlines and how a school could become an ACT test center.
- Plaintiff sued under the TCPA, 47 U.S.C. § 227, and New York G.B.L. § 396-aa, alleging the faxes were unsolicited advertisements sent by fax.
- Defendant moved to dismiss as moot and alternatively for summary judgment; Plaintiff cross-moved for summary judgment. Defendant had previously tendered statutory damages and offered to submit to an injunction, but later redeposited the check it had tendered.
- Court ruled the case was not moot: the tendered payment was redeposited and no injunction had been entered, so Plaintiff had not received complete relief.
- On the TCPA claim the court found genuine disputes of material fact whether the faxes were "advertisements" and whether Plaintiff had given prior express consent, denying summary judgment to both sides.
- On the New York GBL claim the court granted defendant summary judgment, holding the faxes did not offer goods or services for purchase by the recipient school.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness | Case not moot; plaintiff seeks statutory damages and injunction | Case moot because defendant tendered statutory damages and agreed to injunction and fees | Denied as moot: tender was redeposited and no injunction entered; lack of complete relief |
| TCPA — "Advertisement" | Faxes promoted ACT registration and test-center services and were part of marketing to increase registrations | Faxes were informational/transactional to school counselors and not commercial ads | Genuine dispute of material fact; summary judgment denied to both parties |
| TCPA — "Unsolicited" / Consent | Plaintiff never gave express permission to receive advertising faxes | Prior submission of a Level II form (fax number) constituted consent to receive test-related faxes | Denied: defendant failed to prove express consent as to faxed advertisements |
| N.Y. G.B.L. § 396-aa | Faxes promoted goods/services for purchase by recipient | Faxes did not offer goods/services for purchase by the recipient school | Granted for defendant: no reasonable juror could find the faxes offered goods/services for purchase by the recipient |
Key Cases Cited
- Physician’s Healthsource, Inc. v. Vertex Pharm. Inc., 247 F. Supp. 3d 138 (D. Mass. 2017) (discusses categories of messages outside TCPA advertising coverage and guidance on advertisement analysis)
- Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218 (6th Cir. 2015) (defines "advertisement" as material promoting sale of goods/services with a profit aim)
- Bais Yaakov of Spring Valley v. Alloy, Inc., 936 F. Supp. 2d 272 (S.D.N.Y. 2013) (holding faxes seeking subscribers to a commercial product qualify as advertisements)
- Breda v. Cellco P’ship, 934 F.3d 1 (1st Cir. 2019) (noting express permission/consent is an affirmative defense)
- Bais Yaakov of Spring Valley v. Educ. Testing Serv., 367 F. Supp. 3d 93 (S.D.N.Y. 2019) (refusing to equate consent to receive scores/publications with consent to receive fax advertisements)