Los Angeles, CA: Blimpie International Inc, and it' Arizona-based parent Kahala Corp. are facing a Telephone Consumer Protection Act (TCPA) class action lawsuit alleging the company sent junk faxes advertising lunch specials between February and March 2015.
Filed by M&G Auto Parts Inc , a New Jersey auto parts retailer, the TCPA class action alleges the Blimpie franchise sent at least nine separate "junk faxes"advertising daily lunch specials between Feb. 19 and March 12.
According to the complaint, unlike other forms of advertising, faxes cause the recipient to assume the cost associated with the use of the fax machine and of ink toner and paper. "It may take several minutes to receive an unsolicited fax, and during that time, the fax machine may be unable to process actual business communications,"the complaint states. "By sending [M&G] and the other class members unsolicited faxes, defendants unlawfully converted their fax machines, toner and paper to their own use."
The complaint states that a company called Faxertise Inc was listed in the opt-out section at the bottom of each fax. The company runs a service that distributes restaurant lunch specials by fax to businesses in its clients' delivery areas.
M&G states in the complaint that despite the advertisements thanking the company for subscribing to the service, the auto parts dealer says never did subscribed and did not have an established business relationship with Blimpie.
Finally, the plaintiffs allege that the opt-out notice on the faxes is also in violation of the TCPA, which requires that the opt out information be clear and conspicuous. In this case, the faxes allegedly stated that the sender's failure to honor an opt-out request within 30 days would be illegal and omitting what information should be provided to the sender upon making an opt-out request.
The lawsuit seeks certification of a class that would include anyone who received similar faxes from Blimpie during the past four years, which is the statute of limitations for this type of action.
M&G is seeking a jury trial and damages, including statutory damages under the TCPA. The case is M & G Auto Parts Inc. v. Kahala Corp. et al., case number 2:15-cv-01860, in the U.S. District Court for the District of New Jersey.