Court denies dismissal request by A.V.M. Enterprises in TCPA fax case; No business relationship existed, judge rules

By Robert Davis | Mar 19, 2018

BRIDGEPORT, Conn. (Legal Newsline) – The U.S. District Court for the District of Connecticut denied a dismissal request submitted on Feb. 2 by Tennessee corporation A.V.M. Enterprises Inc. in a lawsuit brought by Gorss Motels Inc., a Connecticut company, over allegations A.V.M. sent unsolicited advertisements to the motel business between June 2015 and May 2016.

Judge Victor Bolden found that there was no business relationship between the entities to warrant A.V.M. allegedly sending advertisements via fax. It also ruled that Gorss made sufficient injury-in-fact claims to pursue a case under the Junk Fax Protection Act of 2005.

Gorss Motels alleges that A.V.M. also sent 40 other recipients unsolicited advertisements for its products and services in the same four-year statute of limitations window without gaining expressed consent of the recipients. This claim, among others, provided enough fact to raise a "reasonable expectation that discovery will reveal evidence" against A.V.M.

A.V.M. argued that because the two entities had a mutual relationship with Wyndham Worldwide, the advertisements were sent in context and were not unsolicited. The court denied this claim citing two reasons. The court said the relationship with Wyndham does not constitute a business relationship between Gorss and A.V.M.and A.V.M. did not offer Gorss an opt-out provision in accordance with Connecticut law. 

"A.V.M. also argues that the alleged technical violation of the opt-out requirement does not amount to an injury in fact under Spokeo Inc. v. Robins," the ruling and order states. The court disagreed.

In order for a faxed advertisement to be considered solicited, the recipient needs to give the sender expressed permission to send the faxes, the ruling states. The court found that Gorss' claims coupled with the faxes at hand were reason enough for the claim to survive a motion to dismiss.

Under the Junk Fax Prevention Act, businesses are banned from sending unsolicited advertisements because they waste the receiving company's time, ink and paper. Under certain circumstances where the advertisements are allowed, the sender must include opt-out notices on the faxes.

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