United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss and/or Motion to
Strike (Rec. Doc. 16) filed by Defendant B F T, LP
d/b/a GREAT AMERICAN BUSINESS PRODUCTS (“Great
American”). Plaintiff AMP Automotive, LLC
(“AMP”) opposes this motion (Rec. Doc. 17) and
Defendant has replied. (Rec. Doc. 20). The motion, set for
submission on October 4, 2017, is before the Court on the
briefs without oral argument. Having considered the motion
and memoranda of counsel, the record, and the applicable law,
the Court finds that the Defendant's motion should be
DENIED for the reasons set forth below.
AMP alleges that Defendant Great American violated the
Telephone Consumer Protection Act (“TCPA”) by
sending unsolicited faxes advertising Great American products
and services. (Rec. Doc. 1). In 1991, Congress passed the
Telephone Consumer Protection Act. See Pub. L. No.
102-243, 105 Stat. 2394 (codified as amended at 47 U.S.C.
§ 227). Thereafter, in 2005, Congress passed the Junk
Fax Prevention Act, which amended the 1991 TCPA. See
Pub. L. No. 109-21, 119 Stat. 359 (codified at 47 U.S.C.
§ 227). For simplicity, the Court will refer to the
combined and amended legislation as “the Act.”
Bais Yaakov of Spring Valley v. Federal Communications
Commission, 852 F.3d 1078, 1080 (D.C. Cir. 2017).
makes it unlawful to use a fax machine to send an unsolicited
advertisement. 47 U.S.C. § 227(b)(1)(C). It also
provides a private right of action, which permits any
“person or entity” to bring an action seeking (1)
to enjoin a violation of the Act, (2) to recover for actual
monetary loss from such a violation or to receive statutory
damages of $500 per violation, whichever is greater, or (3)
to pursue both injunctive and monetary relief. 47 U.S.C.
categorizes Great American's actions as a “Junk Fax
Campaign.” (Rec. Doc. 1, p. 4). AMP alleges that Great
American “blasted thousands of junk faxes” in
direct violation of the Act and the regulations promulgated
under the Act by the Federal Communications Commission
(“FCC”). (Rec. Doc. 1, p. 4, ¶ 11). AMP
specifically provides fifteen allegedly unsolicited faxes
that were sent as advertisements from Great American to AMP.
(Rec. Doc. 1-1, Exhibits 1-15). Attached to AMP's
Complaint are the fifteen single-page advertisements, which
all have the following language located towards the bottom of
To order, call us at 1-800-231-0329 or visit
www.gabpauto.com If you'd prefer not to receive
future fax offers, check the box below and fax this to
Id. Further down the page on each advertisement is a
blank check-box followed the additional language providing:
We hope you enjoyed receiving this reminder. However, if
you'd rather not receive future faxes from Great American
please check here. Please note: It may take up to 5 business
days to be removed. Our apologies if you receive additional
faxes during this time.
Id. AMP further alleges that Great American sent
junk faxes without complying with opt-out notice requirements
in violation of the Act and the FCC's regulations
promulgated thereunder. (Rec. Doc. 1, p. 4, ¶ 11).
Moreover, AMP argues that Great American is precluded from
raising an “established business relationship”
defense because the opt-out language provided at the bottom
of the advertisements is not compliant with FCC regulations.
Therefore, the “established business
relationship” defense would not apply to Great
American. Id. at ¶ 13.
also seeks to bring this suit as a class action. Moreover,
AMP seeks to be named representative of the Plaintiff Class
and seeks an incentive award for its efforts as class
representative. Id. AMP also seeks statutory damages
of $500 for each violation of the Act, trebling of damages if
the Court finds fit, and injunctive relief prohibiting Great
American from continuing to send allegedly non-compliant fax
advertisements. Id. at 11-12; see also 47
U.S.C. § 227(b)(3).
American brings this motion pursuant to Fed.R.Civ.P. 12(b)(6)
on the ground that AMP has failed to state a claim upon which
relief can be granted. (Rec. Doc. 16). Great American also
brings a motion to strike AMP's proposed class pursuant
to Fed.R.Civ.P. 12(f) on the ground that AMP's class
definition is inherently flawed. Id.