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'The defendant has not cited to a single case holding that anything more than reasonable suspicion was required to perform a search of even the most invasive kind at the international border, and I have found none,' Judge Paul W. Grimm ruled. (File photo, The Daily Record/Maximilian Franz)

Junk-fax suit can be class action

The plaintiffs in a “junk-fax” lawsuit against Burger King may be able to have it their way — as a class-action lawsuit.

In the first ruling of its kind in the federal circuit that includes Maryland, a U.S. District Court judge in Baltimore allowed the plaintiffs’ lawyers to seek class-action certification in their lawsuit over unsolicited ads sent via fax by the fast-food chain.

Lawyers for Burger King argued class-action lawsuits were not allowed under the Telephone Consumer Protection Act. While other courts in the 4th U.S. Circuit Court of Appeals have never ruled on the issue, Judge Paul W. Grimm found “the law in this district” allows for class-action lawsuits under the TCPA.

“It is apparent that allowing consumers to bring a class action under the TCPA is a uniquely effective way to protect a population already besieged by unwanted and aggressive solicitations from persons or companies hawking their products,” Grimm wrote in an opinion published Tuesday.

The underlying lawsuit was brought in March 2013 by Rockville-based Jay Clogg Realty Group Inc., which alleged it received at least three faxes between December 2012 and January 2013 promoting Burger King’s delivery services. Most of the faxes did not include the caller’s name, telephone number and date and time of transmission as required by the TCPA, according to the lawsuit.

The lawsuit sought $500 for each “negligent violation” of the TCPA and $1,500 for each “willful violation” of the TCPA per plaintiff.

Lawyers for Burger King argued in part the legislative history of the TCPA meant it was not designed for class-action lawsuits. While Grimm acknowledged the law was intended to be enforced by individual actions in small-claims court, it also was designed to be as easy as possible for consumers to use and help eliminate what its authors called a “scourge” of modern society, Grimm said.

Lawyers for Burger King also argued a class-action could lead to multimillion-dollar judgments that would not “represent the actual harm to the consumer but could annihilate the telemarketer.” But Grimm said similar damages could result from an enforcement action brought by a state attorney general.

“This may seem like harsh medicine, but it arguably is more likely to accomplish the TCPA’s purpose of eliminating a ‘scourge on our society’ than would restricting TCPA enforcement to individual actions, in the face of which junk faxers might consider a few thousand dollars’ worth of enforcement actions to be a fair cost for intrusive and unwanted advertising directly into people’s homes or offices,” Grimm wrote.

Daniel S. Blynn, a Washington, D.C. lawyer representing Burger King, did not respond to a request for comment.

Edward A. Broderick, a Boston lawyer representing Jay Clogg Realty, has brought similar TCPA lawsuits in other jurisdictions and said he has yet to have one dismissed for class-action certification.

“These are clearly enforceable as a class-action and we will continue with the case,” said Broderick, who was joined locally by Stephen H. Ring, a Gaithersburg solo practitioner.

Broderick said he was unsure how large the class would be. The plaintiffs’ motion to certify sought to define the class as anyone who received a faxes from Burger King in the four years prior to the complaint being filed. Grimm’s ruling denied certification because there were no facts to support the four-year claim, but he allowed the plaintiff’s lawyers to refile once they better define the class.

The case is Jay Clogg Realty Group, Inc. v. Burger King Corporation, 8:13-cv-00662-PWG.