District Court (N.J.) Holds that Service of Class-Notice by Fax was not Junk Fax under the TCPA

In A & L Industries, Inc. v. P. Cipollini, Inc., 2014 WL 906180 (D.N.J. 2014), Judge Chesler held that class notice by fax did not constitute “junk fax” under the TCPA.

The Court also adopts the reasoning advanced in City Select to reject the exact same arguments regarding Rule 5(b) and the TCPA that are proffered by Defendant here. See 2014 WL 413533, at *3. As to Rule 5(b), the Court finds that where that Rule and Rule 23(c)(2)(B) conflict regarding service of notice, Rule 23(c) should supersede because Rule 23(c) addresses class notice specifically, whereas Rule 5 addresses service generally and in certain instances must take a back seat to other rules of procedure. See Fed.R.Civ.P. 5(a) (“[u]nless these rules provide otherwise”). Additionally, it is not at all clear that Rule 5(b) (2)(E) actually contemplates facsimile transmission when addressing service by “electronic means.” It is just as—if not more—likely that “electronic means” refers specifically to service by e-mail in accordance with the Court’s CM/ECF system; the Local Civil Rules for the District of New Jersey, for instance, interpret “electronic means” to mean e-mail. See Electronic Case Filing Policies and Procedures 14(b) (May 1, 2012) (“Transmission of the [e-mail Notice of Electronic Filing] constitutes service of the filed documents ….”); see also Barlow v. United States, No. 10–2770(FLW), 2012 WL 274011, at *4 (D.N.J. Jan.31, 2012) (discussing Fed.R.Civ.P. 5(b) and L.Civ.R. 5.2, and differentiating between facsimile transmission and service by “electronic means”).  ¶  As to Defendant’s argument that a class notice sent by fax violates the TCPA because the TCPA is intended to eliminate junk faxes (see Opp. Br. at 3), the contention is belied by the language of the TCPA itself, which prohibits the use of fax machines to send “unsolicited advertisement[s].” 47 U.S.C. § 227(b)(1) (C). Defendant does not assert that a legal notice qualifies as an advertisement, and effectively admits the opposite, citing to a Northern District of Illinois case that states “legal documents are not advertisements and thus not strictly within the scope of the TCPA ….” (Opp. Br. at 4 (quoting G.M. Sign, Inc. v. Franklin Bank, S.S.B., No. 06–C–949, 2008 WL 3889950, at *6 (N.D.Ill. Aug.20, 2008)).) The Court is otherwise unaware of any authority standing for the proposition that the most practicable manner of Rule 23(c)(2)(B) class notice—here, notice by fax—must take a back seat to the type of harm suffered by the plaintiff class. Certainly, the defendant in a class action predicated on mail fraud (in, say, the civil RICO context) could not argue that notice to the class disseminated by U.S. mail was inappropriate.