In a touch of irony not lost upon the court, a recent Opinion has determined the method of notice to be utilized to advise class members of a pending class action matter.
The case, City Select Auto Sales, Inc. v. David Randall Associates, Inc., etal., before the United States District Court for the District of New Jersey, involves a class action suit brought pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227. Among other things, the TCPA prohibits “unsolicited advertisements” sent via facsimile, except under specific enumerated situations. The statute provides a private cause of action for the greater of actual monetary loss or $500.00 per violation. Thus, in the present instance, where the defendants purportedly sent unsolicited fax advertisements to some 29,000 recipients, the damages could be substantial.
The court had previously certified the class, and there was no dispute as to the substance of the notice to be sent by the plaintiff to the 29,000 class members. The only remaining question concerned the method of notification. Fed. R. Civ. P. 23(c)(2)(B) provides that “[f]or any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” The method determined by the court to be most appropriate (drum roll!!): faxes. Moreover, there exists the real possibility of multiple fax transmissions to the class members, with U.S. mail to be utilized only in the event that three separate facsimile attempts have been unsuccessful. The TCPA was adopted, in part, to reduce the amount of unsolicited faxes sent out by businesses. Nevertheless, and despite defendants’ protest that sending the notices via fax “would compound the injury,” the court concluded that under the circumstances facsimile delivery would be the most practicable.
Also notable was the court’s observation that court notices are not covered by the TCPA.
Supreme Court and Title VII: Implications for Reverse Discrimination
Earlier this month, the U.S. Supreme Court issued a decision in Ames v. Ohio Department of Youth Services vitiating the so-called “background circumstances” test required by half of federal circuit courts.1 The background circumstances test required majority group plaintiffs pleading discrimination under Title VII of the Civil Rights Act to meet a heightened pleading standard […]
Special purpose acquisition companies (better known as SPACs) appear to be making a comeback. SPAC offerings for 2025 have already nearly surpassed last year’s totals, with additional transactions in the pipeline. SPACs last experienced a boom between 2020–2021, with approximately 600 U.S. companies raising a record $163 billion in 2021. Notable companies that went public […]
Short Form Merger: Streamlining the Process for Businesses
Merging two companies is a complex legal and business transaction. A short form merger, in which an acquiring company merges with a subsidiary corporation, offers a more streamlined process that involves important corporate governance considerations. A short form merger, in which an acquiring company merges with a subsidiary corporation, offers a more streamlined process. However, […]
Tariff Response Options for Small Businesses Facing Financial Distress
The Trump Administration’s new tariffs are having an oversized impact on small businesses, which already tend to operate on razor thin margins. Many businesses have been forced to raise prices, find new suppliers, lay off staff, and delay growth plans. For businesses facing even more dire financial circumstances, there are additional tariff response options, including […]
Common Causes of Partnership Disputes and How to Resolve Them
Business partnerships, much like marriages, function exceptionally well when partners are aligned but can become challenging when disagreements arise. Partnership disputes often stem from conflicts over business strategy, financial management, and unclear role definitions among partners. Understanding Business Partnership Conflicts Partnership conflicts place significant stress on businesses, making proactive measures essential. Partnerships should establish detailed […]
Businesses Are Facing Financial Headwinds—A Practical Guide
*** The original article was featured on Bloomberg Tax, April 28, 2025 — As a tax attorney who spends much of my time helping people and companies who have large, unresolved issues with the IRS or one or more state tax departments, it often occurs to me that the best service that I can provide […]
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