The complaint for this class action claims that Ark Financial, LLC has violated the Telephone Consumer Protection Act (TCPA), by sending unwanted advertising faxes to consumers.
The class for this action is all persons and entities with telephone numbers that received a fax after July 30, 2015 advertising the commercial availability of any property, goods, or services, sent by or on behalf of Ark Financial, for which the persons or entities had not given prior consent and did not have an established business relationship, such as the faxes attached as exhibits to the original complaint.
Congress passed the TCPA in 1991 and amended it with the Junk Fax Prevention Act (JFPA) in 2005. According to the complaint, it “prohibits a person or business from faxing, or having an agent fax, advertisements without the recipient’s prior express invitation or permission…” It also requires that faxes sent to consumers have opt-out notices that meet specific requirements.
Unwanted faxes are an annoyance but also an expense. They tie up telephone lines and fax machines, use up paper and toner, and waste the time of people who have to figure out what to do with them. This shifts some of the costs of advertising to the recipients, who may not be in the least interested in the ads.
The plaintiff in this case is the Barry Law Office, Ltd. in Minneapolis, Minnesota. In January 2019 and many times during June 2019, Ark Financial directed unsolicited advertising faxes to Barry. The complaint notes at least a half-dozen occasions when these faxes were received, including once on January 3, twice on June 4, once on June 18, and twice on June 25.
The faxes were advertising the commercial availability of services, in this case, training for QuickBooks accounting software. This puts them firmly in the category of advertising.
Barry says that it has no established business relationship with Ark and that it never gave Ark permission to send it such faxes.
Statutory damages under the law include $500 per violation (in this case, that would be per fax) if the violation was negligent, but treble damages of $1,500 per violation if the violation was knowing or willful.
The complaint asks for statutory damages of $1,500 per violation for each class member, an injunction forbidding the company from further violating the TCPA, attorneys’ fees and the costs of the suit, interest, and “[s]uch other relief as this Court deems proper.”