By Lauraann Wood

Law360 (August 27, 2020, 5:49 PM EDT) -- A Wisconsin toxicology lab violated the Telephone Consumer Protection Act when it sent unsolicited faxes to promote its offsite testing services amid the ongoing COVID-19 pandemic, an Illinois dental surgeon claimed in federal court Thursday.

Fred J. De La Cotera's proposed class action claims he and about 40 others received two coronavirus-related junk faxes with improper opt-out notices from Noah Associates Inc. in June without ever giving the toxicology lab express invitation or permission to send them.

The lab should be held liable for sending the unsolicited advertisements because they "intruded into [his] and other class members' seclusion and violated their right to privacy, including their interests in being left alone," he alleged.

Noah sent its first fax around June 9 to promote offsite drug-testing services for clinics that have moved to telemedicine, according to the suit. It urged clinics to consider letting the lab perform all of their drug test collections because it makes the process "easy as 1-2-3" by sending test kits directly to patients and sharing results in its "secure portal," the suit says.

The lab sent another fax about two days later promoting its COVID-19 virus and antibody testing, De La Cotera claims. The advertisement boasted that the lab's testing options would provide individuals with insight into their current coronavirus status and help them make informed decisions whether they're symptomatic, asymptomatic or have recovered, according to the suit.

The ad also promoted quick testing and timely results needed "for employees returning to work, government testing or studies, or traditional doctor ordered testing for patients," the suit said. Recipients were allegedly urged not to delay contacting Noah for more information, citing a "limited availability to the amount of samples every lab can perform."

Both promotions indicated in small print toward the bottom that Noah sent them to fax numbers that were listed in its records as an associate and provided a telephone and fax number for recipients who thought they either received the faxes in error or weren't interested receiving the lab's notices by fax, according to the suit.

De La Cotera says Noah's fax ads violate the TCPA because he never asked or consented to receive them and because their opt-out language fails to comply with the statute. He also says he believes the lab has sent other unsolicited and noncompliant faxes to him and his proposed class, that it may be continuing to send them, and "absent intervention by this court, will do so in the future."

"Unsolicited faxes damage their recipients," he said. "An unsolicited fax wastes the recipient's valuable time that would have been spent on something else."

He seeks to represent anyone who has received noncompliant faxes promoting the commercial availability or quality of Noah's property, goods or services within the last four years and who either didn't have a prior relationship with the lab or never asked to receive them. He is asking a court to award him and the proposed class statutory damages as well as injunctive relief blocking Noah from sending any future unsolicited and noncompliant fax ads.

Counsel for De La Cotera and a representative for Noah didn't immediately respond to requests for comment.

De La Cotera is represented by Ryan Kelly of Anderson & Wanca.

Counsel information for Noah wasn't immediately available.

The case is Fred J. De La Cotera DDS v. Noah Associates Inc., case number 1:20-cv-05036, in the U.S. District Court for the Northern District of Illinois.

--Editing by Orlando Lorenzo.

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