Shaun Fauley, through counsel Anderson + Wanca, filed a motion to certify a class alleging that defendant Heska contacted over 10,850 customers via fax in violation of the Telephone Consumer Protection Act. After rehashing issues with Heska contacting class members in a “reconfirmation” effort to retroactively obtain customers’ consent, the court certified the following class:
All persons or entities who were successfully sent one or more facsimiles regarding Heska Corporation’s goods or services from March 12, 2011, through July 21, 2014, that either (1) contain no “opt-out notice” explaining how to stop future faxes or (2) contain an opt-out notice stating, “To unsubscribe from Heska’s promotional faxes, please call 800-464-3752, ext. 4565 or fax (970) 619-3008, and indicate your clinic name and fax number.”
The Court applied the standard used by the D.C. Circuit in the case of Bais Yaakov, agreeing that the TCPA does not impost an opt-out requirement on solicited faxes. The court also noted Heska timely obtained an FCC waiver of the opt-out rule for solicited fax advertisements.