Kavu, Inc. v Omnipak, Corporation, ____ F. 3d ____, 2007 WL 201093, No. C06-109RSL (W.D. Dist. Wash., Jan. 23, 2007).

In a case citing the 7th Circuit Court’s decision in Brill v. Countrywide Home Loans, Inc., the District Court for the Western District of Washington found that claims under the Telephone Consumer Protection Act of 1991 (TCPA) are subject to the jurisdiction of CAFA. (Editors’ Note: See the CAFA Law Blog analysis of Brill posted on November 2, 2005).  While this case is not very interesting from a CAFA perspective, we wanted to make sure that our loyal readers who have TCPA cases are aware of it. 

Kavu, Inc., an outdoor clothing and accessories store, filed suit in Washington state court against Omnipak Corporation for violations of the TCPA arising from a single unsolicited facsimile sent to Kavu by Omnipak. Plaintiff sought to certify a class consisting of all nationwide recipients of the facsimile in question, as well as a Washington state subclass for violations of Washington state law.  On the same day that Omnipak sent the one fax to Kavu, it sent approximately 3,000 other faxes in a four state area.

The lawsuit was filed in Washington state court.  Omnipak removed the case to federal district court asserting jurisdiction under CAFA.

The majority of the District Court’s decision addressed whether the proposed class met the requirements of Federal Rule of Civil Procedure 23(a). The Court eventually determined that the requirements were met but excluded from the class those entities that received the facsimile who had an established business with Omnipak.

Prior to reaching the requirements of Rule 23(a), however, the Court addressed whether it had jurisdiction over claims asserted under the TCPA. The Court first ruled, citing Brill, that federal courts do have jurisdiction over private causes of action asserted under the TCPA. The Court further held that in the case at hand, both the amount in controversy and the diversity requirements of CAFA were met (the amount in controversy exceeded $5 million and at least one class member and one defendant were residents of different states).  The court determined that the statutory damages of $500 plus the potential for treble damages satisfied the amount in controversy easily.

As we battle terrorism, combat global warming, and try to understand why shows like Desperate Housewives, Grey’s Anatomy, and American Idol are popular, we are safe in the knowledge that there are fearless people out there waging war against unwanted faxes.