Court Certifies TCPA Class Action And Subjects Defendant To Aggregate Liability After Discounting Contrary Authority

Despite a readily available forum for individual suits and the disproportionate and the potentially ruinous liability a TCPA class action presents, a New Jersey District Court nonetheless deemed a class action the superior mechanism for resolving a TCPA suit In A & L Indus., Inc. v. P. Cipollini, Inc., No. 12-7598, 2013 WL 5503303, at *5 (D.N.J. Oct. 2, 2013). The defendant then sought reconsideration, which the District Court recently denied.

The lawsuit arose from a fax advertisement that a marketing company sent to more than 4,000 recipients on behalf of defendant Cipollini, Inc., a roofing company. Id. at *1. Neither Cipollini nor the marketer had obtained prior express consent from these recipients. One of them, plaintiff A & L Industries, Inc., brought a class action alleging violations of the TCPA and other claims. Id.

In opposing certification, Cipollini argued that the case does not satisfy Rule 23(b)'s superiority requirement. Specifically, it argued that individual actions are superior because the TCPA's statutory damages create adequate incentive to pursue individual claims, and that aggregate actions are inferior because, when aggregated, the TCPA's statutory damages...