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Bais Yaakov of Spring Valley v. Houghton Mifflin Harcourt Publishers, Inc.

United States District Court, S.D. New York

August 7, 2014

BAIS YAAKOV OF SPRING VALLEY, on behalf of itself and all others similarly situated, Plaintiff,
v.
HOUGHTON MIFFLIN HARCOURT PUBLISHERS, INC., and LAUREL KACZOR, Defendants

For Bais Yaakov of Spring Valley, on behalf of itself and all others similarly situated, Plaintiff: Aytan Yehoshua Bellin, LEAD ATTORNEY, Bellin & Associates, White Plains, NY; Roger Furman, Roger Furman, Esq., Los Angeles, CA.

For Houghton Mifflin Harcourt Publishers, Inc., Laurel Kaczor, Defendants: David Lender, Eric Shaun Hochstadt, LEAD ATTORNEYS, Weil, Gotshal & Manges LLP (NYC), New York, NY.

Page 418

ORDER

Lisa Margaret Smith, United States Magistrate Judge.

Plaintiff, a New York religious corporation, brings this case as a class action, asserting claims against Defendants, a publisher and one of its sales executives, for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (" TCPA" ), and the New York General Business Law § 396-aa (" GBL" ). Docket # I, Complaint, in its Complaint, Plaintiff alleges that on November 15, 2012, " Defendants, jointly and severally, without Plaintiff's express invitation or permission, arranged for and/or caused a telephone facsimile machine, computer, or other device to send an unsolicited fax advertisement (the 'Fax Advertisement') advertising the commercial availability or quality of any property, goods, or services, to Plaintiff's fax machine . . ." Id. ¶ 10. Plaintiff attaches a copy of the Fax Advertisement to the Complaint as Exhibit A. Plaintiff alleges that it " did not provide Defendants with express invitation or permission to send any fax advertisements. The Fax Advertisement was wholly unsolicited." Id. ¶ 11. Plaintiff further alleges that the " Opt-Out Notice" in the Fax Advertisement violates both the TCPA and GBL in several respects. Id. ¶ ¶ 13-14.

In addition, Plaintiff alleges that

16. Upon information and belief, Defendants have, from four years prior to the date of the filing of the Complaint in this action through the present, either negligently or willfully and/or knowingly sent and/or arranged to be sent well over five thousand (5,000) unsolicited and/or solicited fax advertisements advertising the commercial availability or quality of any property, goods, or services, to fax machines and/or computers belonging to thousands of persons all over the United States. Upon information and belief, those fax advertisements contained a notice identical or substantially similar to the Opt-Out Notice contained in the Fax Advertisement sent to Plaintiff.
17. Upon information and belief, Defendants have, from four years prior to the date of the filing of the Complaint in this action through the present, either negligently or willfully and/or knowingly sent and/or arranged to be sent well over five thousand (5,000) unsolicited fax advertisements advertising the commercial availability or quality of any property, goods, or services, to fax machines and/or computers belonging to thousands of persons throughout the United States. Upon information and belief, those facsimile advertisements contained an opt-out notice identical or substantially similar to the Opt-Out Notice contained in the Fax Advertisement sent to Plaintiff.
18. Upon information and belief, Defendants have, from three years prior to the filing of the Complaint in this action to the present, either negligently or willfully and/or knowingly sent and/or arranged to be sent thousands of unsolicited fax advertisements advertising the commercial availability or quality of any property, goods, or services, to fax machines and/or computers belonging to thousands of persons in New York. Upon information and belief, those facsimile advertisements contained an opt-out notice identical or substantially similar to the Opt-Out Notice contained in the Fax Advertisement sent to Plaintiff.

Id. ¶ ¶ 116-18. In its " Class Allegations," Plaintiff defines the three classes that it seeks to represent as follows:

Page 419

Class A: All persons from four years prior to the date of the filing of the Complaint through the present to whom Defendants sent or caused to be sent at least one solicited or unsolicited facsimile advertisement advertising the commercial availability or quality of any property, goods, or services that contained a notice identical or substantially similar to the Opt-Out Notice in the Fax Advertisement sent to Plaintiff.
Class B: All persons from four years prior to the date of the filing of the Complaint through the present to whom Defendants sent or caused to be sent at least one unsolicited facsimile advertisement advertising the commercial availability or quality of any property, goods, or services that contained a notice identical or substantially similar to the Opt-Out Notice on the Fax Advertisement sent to Plaintiff.
Class C: All persons in the State of New York to whom, from three years prior to the date of the filing of the Complaint to the present, Defendants sent or caused to be sent at least one facsimile advertisement without having obtained express invitation or permission to do so and/or that contained a notice identical or ...

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