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Local Baking Products, Inc v. Kosher Bagel Munch

July 19, 2011

LOCAL BAKING PRODUCTS, INC., PLAINTIFF-APPELLANT,
v.
KOSHER BAGEL MUNCH, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4695-09.

The opinion of the court was delivered by: Carchman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 1, 2011 -

Before Judges Carchman, Graves and Messano.

The opinion of the court was delivered by CARCHMAN, P.J.A.D.

The Telephone Consumer Protection Act (TCPA or the Act), 47 U.S.C.A. § 227, enacted by Congress in 1991, prohibits the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . ." 47 U.S.C.A. § 227(b)(1)(C). The Act provides for, among other remedies, a "[p]rivate right of action" and fixes the damages for each violation at $500 or actual damages, whichever is greater. 47 U.S.C.A. § 227(b)(3).

The narrow issue raised on this appeal is whether a plaintiff may maintain a class action to enforce the private cause of action. On defendant's motion to dismiss for failure to state a cause of action, Rule 4:6-2(e) and Rule 4:6-3, the motion judge concluded that no class action could be brought and dismissed all class action claims as well as a separate claim for conversion. Thereafter, judgment was entered in plaintiff's favor for the $500 statutory damages. We affirm and conclude that plaintiff may not maintain a class action.

The facts are not complex. According to plaintiff Local Baking Products, Inc., on May 19, 2006, it received an unsolicited one-page fax in its fax machine from defendant Kosher Bagel Munch, Inc., touting the services of defendant, a local restaurant in Passaic. Apparently, defendant had hired an entity known as Business to Business Solutions to transmit a "blast fax," advertising defendant's food services to approximately 4649*fn1 fax machines.

In response, plaintiff filed a complaint under the TCPA on its behalf and on behalf of:

All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendant, (3) with respect to whom Defendant did not have prior express permission or invitation for the sending of such faxes, and (4) with whom Defendant did not have an established business relationship.

Defendant thereafter moved to dismiss the class action allegations for failure to state a cause of action. The motion judge concluded that a class action could not be maintained under the TCPA. She dismissed the class action allegations as well as the claim for conversion.

This appeal followed.

On appeal, plaintiff asserts that the judge erred in dismissing the complaint's class allegations. It claims that New Jersey authorities support a class action under the TCPA, and the ...


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