Wait A Minute, Mr. Postman: Tenth Circuit Applies Statutory-Violation Exclusion To Junk Fax Claims That Try To Skirt The TCPA

Jacob Hathorn and Robert Helfand of Carlton Fields Jorden Burt write:

Enacted in 1991, the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), inaugurated the era of “junk fax” class actions, in which recipients of mass fax advertisements may pursue statutory damages of $500 per class member. Insurers responded by adding terms to liability policies that expressly exclude coverage for claims under the TCPA. But the dialectic of coverage litigation is ineluctable, and plaintiffs began asserting, in effect, that the TCPA was irrelevant—because junk faxes allegedly violated state consumer fraud statutes or common law rules. Class action complaints invoked these alternative theories, and insureds sought coverage for those claims. Earlier this month, in Emcasco Ins. Co. v. CE Design, Ltd., No. 14-6064 (10th Cir. May 4, 2015), the assertion was rejected (or, at least, sublated). The U.S. Court of Appeals for the Tenth Circuit joined a number of jurisdictions in ruling that the statutory exclusion applies to all claims that arise, even indirectly, from an act that violates the TCPA.