Judge Denies Motion to Junk Burger King Fax Spam Class Action Lawsuit

A Maryland federal judge has denied Burger King Worldwide Inc.’s motion to dismiss plaintiff Jay Clogg Realty Group Inc.’s proposed class action lawsuit alleging the company violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited faxes to consumers.

The plaintiff alleged that it received several faxes from Burger King advertising its delivery service in December 2012 and in January 2013. The plaintiff contends that the advertisements did not include an opt-out notice as required by the TCPA. The plaintiff also contends it received coupons for discounts intended for Houston and New York City even though the company is in Rockville, Md.

The judge rejected a motion by Burger King to dismiss the class action lawsuit, finding that the plaintiff had presented an adequate argument that the fax transmissions it received were sent by the fast food chain.

“Evaluating the sufficiency of a complaint is a ‘context-specific task that requires the reviewing court to draw’ not only ‘on its judicial experience,’ but also on ‘common sense,’ and the natural conclusion reasonably inferred from plaintiff’s allegations is that it received the facsimile advertisements on a fax machine,” U.S. District Judge Paul W. Grimm said in his decision to deny Burger King’s motion to dismiss the class action lawsuit.

He added 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.”

Judge Grimm, however, opined that the current TCPA class action lawsuit, which seeks to represent a class comprised of those who received unsolicited faxes from Burger King over a four-year period, cannot pass for class certification since there is no record that Burger King’s advertising campaign lasted that long.

Burger King’s attempt to strike the class allegations by arguing that TCPA actions inherently are not appropriate for class action lawsuits was rejected by the judge who held that there is nothing in the TCPA that precludes class action relief.

The plaintiff may refile its motion for certification of the Burger King class action lawsuit once it obtains adequate factual support for its motion.

This Burger King TCPA Class Action Lawsuit is Jay Clogg Realty Group Inc. v. Burger King Corp., Case No. 8:13-cv-00662, in the U.S. District Court for the District of Maryland.

If you received unsolicited telecommunications from Burger King or other companies, you may be entitled to legal compensation. You can start to explore your options by visiting the Text Message Spam, Unwanted Cell Phone Calls TCPA Class Action Lawsuit Settlement Investigation. Here, you can enter information about your situation for a legal review by a trained expert with a background in this type of litigation. The initial consultation is completely free of charge, and from it, you can receive valuable guidance on the best steps to take in your exact situation.