March 1, 2021
In February 2016, Whiteamire Clinic, P.A. INC. (Whiteamire Clinic) filed its Class Action Complaint with the Court. Alleging that Cartridge World sent out mass unsolicited faxes without the express permission of the recipients. The faxes in question were sent on the 3rd and 16th July 2012.
In and out of the courthouse Whiteamire Clinic amended the complaint on behalf of itself and a putative class in May 2016. In February 2017, the Court denied Cartridge Worlds motion for Judgment. In January 2018, the court denied both Plaintiff’s and Defendant’s Motions for Summary Judgment.
In April 2018, the Court adopted the parties’ joint proposed schedule which included a class discovery cut-off date of 31 October 2018 and Motion for Class Certification schedule. One week later, Cartridge Worlds legal counsel moved to withdraw. The Court then ordered the Defendant to obtain new counsel within thirty days.
In September 2018, Cartridge World asked the Court for more time to obtain new counsel and the Court gave Cartridge World until 9 November 2018 to obtain new counsel but warned that failure to obtain new counsel may result in an adverse judgment.
Cartridge world never obtained new counsel.
Whiteamire Clinic now seeks summary judgment and an award of damages for the class totalling $4.293 million (€3.562 million) based on the $500 (€415) statutory amount the Court awarded Plaintiff individually per each unsolicited fax advertisement.
According to the Plaintiff, it is entitled to summary judgment on behalf of the Class because the faxes did not contain the statutory required opt-out language. As a result, the Defendant could not avail itself of the “Established Business Relationship” defence.
Background: In the United States, a fax is ‘unsolicited’ if it is sent to persons who have not given their ‘prior express invitation or permission’ to receive it. But there is a narrow exception to this general ban permitting the sending of unsolicited faxes.
The sender will need to show three things: (1) the sender and recipient have ‘an established business relationship’; (2) the recipient voluntarily made his fax number available either to the sender directly or via ‘a directory, advertisement, or site on the Internet’; and (3) the fax contained an opt-out notice meeting detailed statutory requirements.
However, if the unsolicited fax does not contain a properly worded opt-out notice, the sender will be liable under the statute, regardless of whether the other two criteria are met.
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