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Independent Pharmacy Distributors Unwanted Faxes TCPA Class Action

Close-Up of Fax Machine

The Telephone Consumer Protection Act (TCPA) forbids businesses from sending out unwanted advertising faxes to consumer fax machines as well as making unwanted telemarketing calls to consumers. The complaint for this class action claims that Independent Pharmacy Distributor, LLC (IPD) violated the TCPA when it sent faxes to consumer fax machines.

The class for this action is (a) all persons, who (b) on or after April 23, 2015, (c) were sent faxes by or on behalf of Independent Pharmacy Distributor, LLC, promoting its goods or services for sale, (d) where IPD does not have evidence of consent from the recipient or an establish business relationship with the recipient. The complaint also proposes classes for the Illinois Consumer Fraud Act, for conversion, and for trespass to chattels.

The TCPA tries to protect consumers from unwanted telemarketing, which became an outsized burden to consumers once businesses were able to get their hands on automated dialing systems and prerecorded messaging systems. The law forbids automated telemarketing calls to consumer cell phones or to numbers on the National Do Not Call Registry, except to consumers who have given their consent to receive such messages. Text messages are also considered to be calls.

Faxes can be a particular annoyance, since they tie up phone lines and fax machines, use up paper and ink or toner, and waste the time of those who have to figure out who sent them and what to do with them. Businesses are supposed to get permission from consumers before they send them out, and the faxes must bear opt-out instructions that meet the requirements of the law. 

On August 31, 2016, Glen Ellyn Pharmacy, Inc. received an unsolicited fax advertisement from IPD. A copy of the ad was attached to the complaint when it was filed in court. The fax was of the type forbidden under the TCPA because its purpose was to announce the availability and pricing for IPD’s products. 

The complaint claims that Glen Ellyn has no prior relationship with IPD and had not given IPD permission to send it advertising faxes. In addition, the fax did not have an opt-out notice that complied with the requirements of the law. 

The complaint says, “On information and belief, the fax attached hereto was sent as part of a mass broadcasting of faxes.”

The law allows consumers to whom such faxes were sent to ask for $500 per violation, if the sending was negligent; if it was willful or knowing, consumers may ask for up to $1,500 per violation.

The complaint also claims that the unwanted faxes sent by IPD violate the Illinois Consumer Fraud Act and constitute conversion and trespass to chattels.

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