Haynes and Boone Successfully Argues Against Class Certification in TCPA Lawsuit


NEW YORK – Lawyers from Haynes and Boone, LLP’s New York office successfully defeated a motion seeking class certification in a lawsuit alleging violations of the Telephone Consumer Protection Act (TCPA).

Federal District Court Judge Cecelia Altonaga of the U.S. District Court for the Southern District of Florida determined in favor of Haynes and Boone’s client that class certification was inappropriate where it would have required the court to examine the particulars of whether more than 60,000 alleged recipients of a fax advertisement had consented to receive the fax.

The TCPA provides for a private right of action for recipients of unsolicited fax advertisements. Haynes and Boone’s client was alleged to have violated the TCPA by sending mass fax advertisements without first obtaining express permission of the recipients and by failing to display the requisite opt-out notice on the advertisement.

New York Partner Ken Rubinstein and Associates Sarah Jacobson and Joe Lawlor successfully argued that it could not be discerned which recipients consented to receive the faxes, and therefore class treatment would not be appropriate. The district court agreed, finding, in part, that there was an “insurmountable problem” with identifying the universe of potential class members and whether certain recipients consented to receive faxes.

“We are pleased that the court determined that class certification was not warranted under the circumstances,” said Rubinstein. “We believe that this is an important decision in this area and is the correct one.”

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