Germed Inc. & Germed Ltd.  – Junk Fax Protection Act Class Action Filed

On January 4, 2018, a junk fax class action was filed in United States District Court, Northern District of Illinois, by Plaintiff Shaun Fauley against Defendants Germed Inc. and Germed Ltd (“Germed”) challenging Germed’s practice of sending unsolicited advertisements by facsimile in violation of the Junk Fax Protection Act of 2005.**

Germed Junk Fax Class Action – The Germed Junk Fax Class & Relief Sought

The junk fax class action lawsuit was brought on behalf of all persons who within the past four years prior to the filing of the class action were sent telephone fax messages advertising the commercial availability or quality of any property, goods, or services by or on behalf of Germed, from whom Germed did not obtain “prior express invitation or permission” to send advertisements by fax, or with whom Germed did not have an established business relationship, or where the faxed advertisements did not include an opt-out notice in compliance with 47 C.F.R. § 64.1200(a)(4)(iii).

The Germed junk fax class action lawsuit seeks injunctive relief enjoining Germed from sending unsolicited advertisements in violation of the JFPA, in addition to statutory damages of $500 for each violation of the JFPA and treble, or triple, damages.

Germed Junk Faxes – No Prior “Express Invitation or Permission” or Established Business Relationship

According to the Germed junk fax class action complaint, Germed faxed to Plaintiff and multiple other recipients the same and other unsolicited faxes with opt-out language identical or substantially similar to the opt-out language in this Germed complaint fax advertisement exhibit or sent the same and other advertisements by fax with the required opt-out language, but without first receiving the recipients’ express invitation or permission or without having an established business relationship.

Germed Junk Fax Class Action – Damages Suffered by Plaintiff and Other Class Members

The Plaintiff and other class members, according to the Germed junk fax class action complaint, suffered damages through the loss of paper and toner consumed when printing Germed’s facsimiles.  Germed’s faxes used Plaintiff’s and other class members’ telephone lines and fax machines, resulting in a waste of time receiving, reviewing and routing Germed’s unauthorized faxes. The unauthorized facsimiles impacted time otherwise spent on the Plaintiff’s and the other class members’ business activities. Additionally, the Germed junk fax class action complaint alleges that Germed’s faxes unlawfully interrupted the Plaintiff’s and other class members’ privacy interests in being left alone.

**Fauley v. Germed Inc., et al (1:18-cv-00065, N.D. Ill.)

Consumer Information: Fax Advertising 

The FCC’s Fax Advertising Policy states:

The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, restricts the use of the facsimile machine to deliver unsolicited advertisements. Specifically, the TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” The TCPA applies only to those facsimile messages that constitute “unsolicited advertisements.” [T]he statutory prohibition applies to such advertisements [s]ent both to residential and business facsimile numbers.

In 2005, the Junk Fax Prevention Act amended the TCPA to permit the sending of unsolicited facsimile advertisements to individuals and businesses with which the sender has an established business relationship . . . and to provide a process by which any sender must cease sending such advertisements upon the request of the recipient. On April 5, 2006, the [FCC] adopted rules to implement the Junk Fax Prevention Act. Among other things, 47 C.F.R. § 64.1200 requires the sender of fax advertisements to provide notice and contact information on the fax that allows recipients to opt out of future fax transmissions from the sender and requires senders to honor opt out requests within the shortest reasonable period of time, not to exceed 30 days.

Consumer Information: Junk Fax FAQ’s

The FCC’s Junk Fax FAQ page states:

Unsolicited advertisements sent to your fax machine are sometimes called “junk faxes.” In most cases, FCC rules under the Telephone Consumer Protection Act and Junk Fax Prevention Act prohibit sending junk faxes.

Can companies send advertisements to my fax machine?

Businesses may send a fax advertisement to you if you gave them permission.

In all other instances, there must be both an established business relationship between you and the fax sender (based on an inquiry, application, purchase or transaction) and the sender must have obtained your fax number in one of the following ways:

Directly from you within the context of the established business relationship – for example, as part of an application, contact information form or membership renewal form.

From a directory, advertisement or website to which you voluntarily agreed to make the number available for public distribution, and the sender has taken reasonable steps to verify that you consented to have the number listed.

From your own directory, advertisement or website, unless you have noted on such materials that you do not accept unsolicited fax advertisements.

Fax advertisements sent as part of an established business relationship must include a notice informing you of your right to avoid future faxes and instructions for making an opt-out request.

A fax sender may not send fax ads based on obtaining your fax number in the ways described above without also having an established business relationship with you.

How do I opt out from receiving faxes?

If the fax you received includes a notice about opting out of future faxes, follow those instructions.  The opt-out information must include a cost-free way to submit the opt-out request to the sender, such as a toll-free number, local phone number, web site address, or email address. These opt-out contact options must be available 24 hours a day, seven days a week.

When you send an opt-out request, be sure to identify the telephone number of your fax machine.

Senders must honor opt-out requests within the shortest reasonable time, not to exceed 30 days.

Putting an opt-out notice on a fax ad does not, by itself, make the fax lawful if the sender doesn’t also satisfy the requirements described above.

Have You Received Junk Faxes or Unsolicited Telemarketing Calls, Autodialer Calls, Robocalls or Text Messages?

If you have received junk faxes, unsolicited telemarketing calls, autodialer calls, robocalls or text messages and have questions about your potential legal rights, including whether to consider filing a lawsuit to try and recover monetary damages from Telephone Consumer Protection Act or Junk Fax Protection Act violations, please contact Kehoe Law Firm, P.C. by completing the form above on the right or sending an e-mail to [email protected].

Kehoe Law Firm, P.C.