BOSTON (Legal Newsline) – Cynosure Inc. has agreed to pay $16 million to settle allegations that it violated the Telephone Consumer Protection Act (TCPA) by
faxing unwanted advertisements to ARcare Inc.
Cynosure, an aesthetic laser procedures company, was alleged to have sent
thousands of faxes to ARcare Inc. The class action lawsuit was settled in a Massachusetts
federal court. ARcare is a nonprofit organization located in Arkansas.
“There were hundreds of thousands of unsolicited fax
advertisements sent,” David Klein, a managing partner with Klein, Moynihan and
Turco, told Legal Newsline. “Cynosure did not have an established business relationship
with the plaintiff and did not include the requisite opt-out language that is
required under TCPA.”
The complaint defines an established business
relationship as “a prior or existing relationship formed by a voluntary two-way
communication between a person or entity and a business or residential
subscriber with or without an exchange of consideration, on the basis of an
inquiry, application, purchase or transaction by the business or residential
subscriber regarding products or services offered by such person or entity,
which relationship has not been previously terminated by either party.”
ARcare claimed that it was sent unsolicited faxes from
Cynosure without written consent. According to the settlement, Cynosure
attempted to send its advertisements to upwards of 76,000 different fax numbers
between July 27, 2012, and Aug. 2, 2016.
The TCPA was violated due to the fact that the faxes
were sent without ARcare’s consent and without any opt-out language on the
faxes. The opt-out notice is usually provided on the first page of a fax in
order to comply with TCPA requirements.
“We handle a lot of these cases,” Klein said. “People
continue to send faxes without following TCPA guidelines.”
According to the complaint, “The fax advertises a
seminar featuring Cynosure’s products. The fax informs the recipient that the
seminar will provide up close and personal insight to the industry’s most innovative
laser procedures and marketing tools and that special promotions are available
exclusively for seminar attendees.”
ARcare claimed that the unsolicited faxes disrupted
its daily operations and cost it ink and paper. ARcare also claimed that Cynosure’s
faxes also took up time that would have otherwise been spent on its
In terms of the settlement amount reached, Klein said,
“They most likely started at a larger number and worked down.”
He added, “Cynosure
faced an uphill battle” in fighting the complaint.
In regards to the settlement agreement, Cynosure will
produce a settlement fund of $16 million, agreed upon in mediation of the two
parties. A final settlement approval hearing has not yet been set.
ARcare was represented by Randall K. Pulliam of Carney
Bates & Pulliam PLLC; Phillip A. Bock of Bock Hatch Lewis & Oppenheim
LLC; and Alan L. Cantor of Swartz & Swartz PC.
Cynosure was represented by John J. Butts, Tasha J.
Bahal, Michael J. Horrell and Alan E. Schoenfeld of Wilmer Cutler Pickering
Hale and Dorr LLP.