District Court (Ill.) Dismisses TCPA Fax Case; Plaintiff Must Allege More than Merely that the Defendant’s Products Were Advertised in the Fax

In Urban Elevator Service, Inc. v. Stryker Lubricant Distributors, Inc., 2015 WL 6736676, at *1-2 (N.D.Ill., 2015), Judge Shah found granted a Motion to Dismiss a TCPA blast-fax class action against one defendant who claimed that it was not responsible for the sending of the fax at issue.

In response, plaintiff argues that—by pleading “Defendants” sent the fax—it did allege Sinopec USA sent the fax. Plaintiff also contends that TCPA liability extends to those who cause a third part to send a fax. Plaintiff says that because Sinopec USA is a “Sinopec company,” it is reasonable to infer “that its goods and services are also Sinopec products and therefore are prominently displayed in the subject fax advertisement.”² Finally, plaintiff argues that Sinopec USA’s “liaison” status makes it reasonable to infer that the company “was working in collaboration with the other defendants to market Sinopec products.” [26] at 6–7.  Although the complaint arguably asserts that Sinopec USA directly sent the fax or caused the fax to be sent, the pleading contains no factual content that raises the right to relief above the speculative level. Plaintiff offers nothing to suggest its theory as to Sinopec USA is anything other than pure guesswork. The closest plaintiff comes is to note that both companies have “Sinopec” in their names, see [26] at 6–7, but that is not enough. And while plaintiff posits in its brief that Sinopec USA “was working in collaboration with the other defendants to market Sinopec products,” plaintiff’s actual complaint says nothing to that effect. Plaintiff may not amend its complaint by means of its response brief.

In a footnote, the Court stated:

Plaintiff suggests a defendant may be liable under the TCPA merely if its products are advertised in an unlawful fax. See [26] at 6. To the extent the non-binding caselaw plaintiff relies upon suggests such a rule—and it is not clear that it does—I disagree. A defendant may be liable under the TCPA’s junk fax provisions only if it sends the fax itself or causes a third party to send the fax on its behalf. Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1254 (11th Cir. 2015) (“a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly under the TCPA’s ban on the sending of junk faxes.”) (emphasis added). To hold otherwise would permit a malicious actor to foist liability (and not just a meritless lawsuit) on the victim of its choosing.