Seven Plaintiffs filed an action alleging violation to the
Telephone Consumer Protection Act and the Maryland Telephone Consumer Protection
Act. The Plaintiffs alleged that they received hundreds of unsolicited facsimile
advertisements promoting travel packages, healthcare discounts, toner and other
office supplies, life insurance, mortgages, and other products and services.
None of the Plaintiffs had business relationships with the Defendants, the
entity responsible for the unsolicited facsimiles. Plaintiffs allege that they
received 882 unsolicited faxes, some of which were sent over three years before
the pending lawsuit was filed on December 17, 2008. As the general statute of
limitations in Maryland is three years, Defendants argue that faxes received
more than three years prior to the filing of the lawsuit should not be
considered. Plaintiffs contend that the MTCPA is a specialty statute, which
falls under an exception to the general three-year statute of limitations.
Pursuant to §5-102 of Courts & Judicial Proceedings, a specialty statute is
entitled to a twelve-year statute of limitations.
The MTCPA is entitled "violations of certain federal
laws and regulations prohibited" and declares that, "a person may not
violate . . . . the Telephone Consumer Protection Act" as codified at 47
U.S.C. § 227. The federal TCPA prohibits, among other things, the
unsolicited sending of faxes.
The twelve-year statute of limitations is set forth in
§ 5-102 of Courts & Judicial Proceedings as follows
(a) twelve-year limitation.
– an action on one of the following specialties shall be filed within twelve
years after the cause of action accrued, or within twelve years from the
date of the death of the last to die of the principal debtor or creditor,
whichever is sooner: 1. promissory note or other instrument under seal; 2.
by bond except a public officer's bond; 3. judgment; 4. recognizance; 5.
contract under seal; or 6. any other specialty.
(Emphasis added).
The issue was whether an action filed under the MTCPA
comes within the meaning of any “other specialty” to qualify for the factual
twelve-year statute of limitations period.
The statute does not define any other specialty. Based
upon Maryland case law, the Court explained a workable principle for
determining when a statutory action is any other specialty. That framework
has the following criteria, all of which must be satisfied to be considered
a “specialty” under § 5-102(a)(6):
1. the duty, obligation, prohibition, or regulation to
be enforced is created or imposed solely by the statute, or a related
statute and does not otherwise exist as a matter of common law;
2. the remedy pursued in the action is authorized
solely by the statute, or a related statute, and does not otherwise exist
under common law; and
3. if the action is one for civil damages or recompense
in the nature of civil damages, those damages are liquidated, fixed or, by
applying a clear statutory criteria, or are readily ascertainable.
The Court held that under this framework, the MTCPA
does not qualify as a specialty. The remedies made available under the MTCPA
prevent the qualification. Plaintiff can recover reasonable attorneys' fees
and damages, in the amount of $500 for each violation or actual damages
sustained as a result of the violation - whichever is greater. In other
words, the available remedies under the MTCPA include not only
non-liquidated damages but also actual damages in lieu of the $500 statutory
damages. The availability of actual damages, a remedy available under common
law, prevents the MTCPA from qualifying as a specialty under § 5-102. Here,
actual damages could be the cost of paper and ink used in processing the
unsolicited fax, diminution of the value of the facsimile machine, lost
employee productivity associated with the receipt, review, and disposal of
the unwanted faxes.
Thus, the MTCPA is subject to the three-year statute of
limitations and facsimilies received more than three years prior to the
filing of the lawsuit should be excluded from the claim.
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