Latest Junk Fax Lawsuit–Adler v. Vision Lab Telecommunications

By Eric Goldman

Adler v. Vision Lab Telecommunications, Inc., 2005 WL 2621984 (D.D.C. Oct. 17, 2005).

I’ve set up a Westlaw alert to notify me of new TCPA cases and I’m pretty shocked by the volume of cases being reported under the law–it’s way higher than I imagined. I typically get 3-5 emails from Westlaw a week with new cases interpreting the TCPA. Not surprisingly, plaintiffs seem to be loving it!

I’m blogging about this case in particular because of its direct relevance to the adware/spyware cases like Sotelo v. DirectRevenue and Simios v. 180Solutions (I know there’s a third case against eXact, but I haven’t had a chance to read the complaint yet).

In the Adler case, the plaintiffs brought suit over junk faxes. The defendants moved to dismiss the various claims.

Of particular interest is that the judge granted the motion to dismiss the common law negligence claim, saying that the common law claim was subsumed by the TCPA law. It appears that this specific question has created a split of precedent. The court cited both Morris v. Fax.com, Inc., No. 03-CA-1109 (D.C. Sup. Ct. June 13, 2003) allowing (reluctantly) the negligence claim to survive a motion to dismiss, and Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365 (Tex. App. 2004), which granted the motion to dismiss.

While the Sotelo court denied the motion to dismiss the negligence claim, I think the Sotelo court ultimately will reach the same conclusion as this court that the negligence claim is subsumed in the other claims.

Also interesting is that the judge denied the motion to dismiss the common law invasion of privacy claim (raised in the Simios case but not (yet?) raised in the Sotelo case). Referring to the Restatements and a motley assortment of precedent, the court says “in extreme circumstances, sending unauthorized fax advertisements may be an intrusion upon seclusion.” The court then hastened to add that “Adler may have difficulty proving that defendants’ faxes were a frequent enough intrusion to be highly offensive to a reasonable person.”

I’d have to research the case law more, but on the face of it, this seems like a big win for anti-fax/anti-telemarketing plaintiffs. There’s an acknowledgement that with the right facts, a common law invasion of privacy claim is valid.

Does this thinking port over to the adware/spyware context? The motley precedent cited by the Adler court is heavily laced with references to telephone calls being intrusive, so as precedent this case could be easily distinguished. On the other hand, if the standard is that any marketing intrusion could constitute invasion of privacy so long as the intrusion is frequent enough, then anti-adware plaintiffs should be thrilled!

UPDATE: BNA (subscription required) reports that the case has settled.