Advertising Law Blog

In Bolling Prescription Lab v. Adelphia Supply U.S.A. (decided on May 5, 2017 in the Northern District of Illinois), the plaintiff brought an action under the Telephone Consumer Protection Act (TCPA), alleging that the Defendant sent at least twenty unsolicited advertisements via facsimile. The Plaintiff is a pharmacy and the Defendant is a for-profit business engaged in selling wholesale pharmaceutical goods including medications and supplies.

Plaintiff’s Complaint asserts that the Plaintiff did not solicit these advertisements and that statutory damages of up to $1,500 per fax should be awarded under the TCPA. Plaintiff alleged that the unsolicited faxes inflicted damage through nonconsensual use of the fax machine, paper, ink toner, and use of Plaintiff’s phone lines, thereby preventing the receipt of authorized faxes. Plaintiff claimed to have suffered undue wear and tear on the fax machine and invasion of privacy.

The Complaint, filed on February 27, 2017, was filed as a class action. On the same day, Plaintiff filed a precautionary Motion for Class Certification. In support of the motion, the Plaintiff argued that although the specific identities of other class members had not yet been ascertained, the class was large enough to render joinder of each potential plaintiff impracticable; there were questions of law and fact raised by the named Plaintiff that are common and typical of the claims of the additional class members; and that Plaintiff is able to fairly and satisfactorily represent the interests of all class members. In the motion, the Plaintiff requested leave to submit a brief and other evidence in support of the motion after obtaining discovery in relation to the class elements. On May 5, 2017, the court denied the Plaintiff’s motion to certify the class as premature, without prejudice.

TAKEAWAY: Premature class certification motions are filed in certain districts to block a defendant’s ability to “pick off” a lead plaintiff by satisfying its individual claim, thereby leaving the class action to die because there is no one around to serve as a lead plaintiff. Class action plaintiffs’ attorneys know this and file class certification motions on the same day as they initiate the lawsuit. Once the class certification motion is filed, a defendant cannot pick off the lead plaintiff.  Therefore, even though the motion was denied without prejudice, the strategy was a successful one for the plaintiff.