United States: Devastating TCPA Fine Levied Against Small Roofing Company

Last Updated: April 7 2015
Article by Michael C. Lueder

David Randall Associates, Inc. has provided commercial roofing services in eastern Pennsylvania, New Jersey, and mid-state Delaware for the past 25 years. Last Friday, the company was hit with a $22,405,000 TCPA fine in a class action alleging it sent over 44,000 unlawful fax advertisements to roofing prospects without their permission. The award will be divided among those fitting this class description and their lawyers:

All persons or entities with whom David Randall Associates did not have an established business relationship, who were successfully sent one or more unsolicited faxes during the period March 29, 2006 through May 16, 2006, stating, "ROOF LEAKS??? REPAIRS AVAILABLE. Just give us a call and let our professional service technicians make the repairs!" and "Call: David Randall Associates, Inc. TODAY."

The facts giving rise to liability in City Select Auto Sales, Inc. v. David Randall Associates, Inc. were not uncommon. In the Spring of 2006, Business to Business Solutions solicited Raymond Miley, III, the president of David Randall, to market David Randall's roofing services through B to B's fax advertising services. Mr. Miley then delegated to his administrative assistant, April Clemmer, the responsibility of communication with B to B. Ms. Clemmer sent the text of the advertisement to B to B along with a list of zip codes to be solicited for business. B to B then apparently added language falsely stating that a "person" using the recipient's business phone "supplied the fax number and permission to send faxes" and sent out 12,000 faxes advertising David Randall's services.

The response to the faxes was swift. The company immediately received multiple complaints concerning the unsolicited nature of the advertisements. Several of the complaints stated that the opt-out hotline list was ineffective or unavailable, and suggested that the faxes violated the law. Ms. Clemmer forwarded the list of annoyed recipients to B to B and asked that they receive no more faxes.

B to B apparently removed the names as requested. B to B continued to add language to future faxes. One stated that the fax was a charitable appeal and exempt from most faxing regulations. Another threatened to report to the State Bar Association and to file criminal and civil charges against anyone who "Fax Baits" or attempts extortion. All told, David Randall ordered three more rounds of blast faxes. Each round produced more complaints. Some people even threatened to pursue legal action. Others promised to contact the Federal Communications Commission. Many of the complainers said the hotline for removal remained unavailable.

After that fourth blast, City Select Auto Sales sued. David Randall tried to bring in B to B as an additional defendant, but it was nowhere to be found. B to B's principals did not answer the third party complaint and the Court entered default judgment against them.

David Randall chose a feisty litigation strategy. It fought pro hac vice admission requests, tried to take (and maybe did take) the deposition of plaintiffs' counsel and filed a motion to compel. Despite the fight, a class was eventually certified and the case came for hearing on plaintiff's motion for summary judgment.

David Randall argued that it had a pre-existing business relationship with at least 183 (out of 44,000) of the asserted class members and that certain class members, "voluntarily and prominently publicized" their fax numbers for public distribution on their websites. The New Jersey Federal District Court judge agreed that fax advertisements are not prohibited if the unsolicited ad is from a sender with an established business relationship or the sender obtained the fax number through an internet website which is controlled by the recipient and manifests a desire to be contacted.

However, even if the information was obtained through a website, the Court ruled that summary judgment for the class was appropriate because David Randall failed to place a proper opt-out notice on all faxes. In particular, the faxes did not clearly and conspicuously notify the recipient that it may opt out from receiving any future unsolicited advertisements. They did not state that the sender's failure to comply with the request for removal within 30 days would violate the law. They did not contain a cost free mechanism, including a domestic phone number and fax number, for the recipient to transmit its request for removal.

The facts here are not unique. The results are not surprising. Here is how David Randall could have avoided this mess:

  1. David Randall should have conducted some, any due diligence on Business to Business Solutions.
  2. David Randall should have reviewed the actual fax B to B was sending. This would have surely led to questions. Why was B to B adding that extra language regarding charitable contributions and making threats to those challenging the legality of the advertisement?
  3. The company should have listened to complaints it was receiving about the faxes. Had David Randall investigated the complaints made after the first blast, it would not have sent the following three and its liability would have been closer to six rather than 22 million dollars.
  4. David Randall should have consulted with counsel prior to launching into a new marketing platform. While TCPA cases related to autodialing have exploded in recent years, blast fax cases were routinely filed in the early 2000s. Had the company inquired, competent counsel could have helped.
  5. Before sending faxes, David Randall should have made sure that it contained the proper out-out language.

All that is easy to say in hindsight. My speculation is that none of this was done because no one at David Randall knew the TCPA even existed. It is hard to say why such a case was not resolved sooner, but readers might use this one as an example of why competent TCPA counsel can save a company a lot of trouble if consulted before a call or fax campaign begins.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions