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AMP Automotive, LLC v. B F T, LP

United States District Court, E.D. Louisiana

November 13, 2017

AMP AUTOMOTIVE, LLC
v.
B F T, LP d/b/a GREAT AMERICAN BUSINESS PRODUCTS

         SECTION A(5)

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Background

         Plaintiff 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).

         The Act 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. § 227(b)(3).

         AMP 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 the page:

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 1-800-423-6808.

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.

         AMP 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).

         Great 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.

         II. ...


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