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Law360 (December 14, 2020, 10:30 PM EST) -- Two small businesses brought a putative class action against a mask maker in Illinois federal court Monday, alleging that shortly after the coronavirus pandemic began they received unsolicited advertisements via fax for its personal protective equipment in violation of the Telephone Consumer Protection Act.
A small pizza chain in Illinois and a chiropractic clinic in Florida allege in their complaint that they received faxed advertisements for different types of face masks from MP Business Doctors LLC, which does business as MP Face Mask LLC, beginning around April.
The small businesses say the unsolicited faxes not only wasted their paper and ink toner supply but also wasted their time and invaded their right to privacy and seclusion.
"Defendant's faxes intruded into plaintiffs' and other class members' seclusion and violated their right to privacy, including their interests in being left alone," said Old Town Pizza of Lombard Inc. and Medical & Chiropractic Clinic Inc.
MP Face Mask, which has its primary place of business in Southern California, allegedly advertised via fax their range of masks — "FDA/CE Certified" KN95 face masks, surgical masks and standard masks.
The complaint states that these ads were sent to dozens of other recipients without prior express permission from the receiver or compliant opt-out notices.
The companies seek to enjoin MP Face Mask from sending unsolicited junk faxes, to be awarded statutory damages in the minimum amount of $500 for each violation of the TCPA and seek to have those damages trebled in the event a willfulness violation is shown.
The firm representing the small businesses in this case, Anderson & Wanca, is no stranger to TCPA junk fax suits.
It has brought dozens of similar suits in recent years, including one that was appealed all the way to the U.S. Supreme Court in 2019, only to be punted back down. That dispute centered on whether the Hobbs Act requires federal courts to accept wholesale the Federal Communications Commissions' legal interpretations of the TCPA.
The firm is also representing an auto company challenging the FCC's declaratory ruling that broadcasters of junk faxes, not unknowing advertisers, are liable under the TCPA. Akin Gump Strauss Hauer & Feld LLP sought the ruling last year to clarify what it viewed as a murky issue surrounding liability under the unsolicited-call statute.
Anderson & Wanca brought another COVID-19-related suit, this time on behalf of an Illinois dental surgeon alleging a Wisconsin toxicology lab violated the TCPA when it sent unsolicited faxes to promote its offsite testing services amid the pandemic.
In a separate case, the Seventh Circuit upheld a $5.7 million judgment in February against a pharmaceutical wholesaler accused of sending junk faxes to a class of medical professionals, represented by Anderson & Wanca.
The firm is also litigating a TCPA junk fax suit against telecommunications giant Sprint and another against AT&T, both in Connecticut federal court.
Representatives for the parties did not immediately respond to requests for comment.
The plaintiffs are represented by Ryan M. Kelly of Anderson & Wanca.
Counsel information for MP Face Masks was not available Monday.
The case is Old Town Pizza of Lombard Inc. et al. v. MP Business Doctors LLC, case number 1:20-cv-07386, in the U.S. District Court for the Northern District of Illinois.
--Editing by Orlando Lorenzo.
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