Two proposed TCPA class actions, the same defendant in both, one legal question, and the same plaintiffs' firm on both. The defendant in Ascent Chiropractic, LLC v. SimonMed Imaging MSO, LLC, 2026 U.S. Dist. LEXIS 188431 (E.D. Wis. Aug. 21, 2026), thought that added up to a stay of the second filed case pending the resolution of the first. It did not.
The claim is a § 227(b)(1)(C) case: an spam fax advertising a discounted price for one of the defendant's services. The defendant pleaded the defense that has become the central question in TCPA fax litigation—that the ad went out through an online fax and that those do not qualify as a "telephone facsimile machine" under the TCPA.
Federal circuits disagree on this point. Lyngaas v. Curaden AG, 992 F.3d 412 (6th Cir. 2021), declined to put faxes received on anything but a traditional machine outside the TCPA; Career Counseling, Inc. v. AmeriFactors Financial Group, LLC, 91 F.4th 202 (4th Cir. 2024), held that an online fax service cannot qualify. The Ninth Circuit has the issue on appeal in True Health Chiropractic Inc. v. McKesson Corp., No. 26-4045.
So the defendant moved to stay, pointing at a first-filed proposed class action in Arizona raising the identical issue regarding online fax. The defendant argued that because the same firm filed both cases that the Wisconsin case was forum shopping; the Arizona class "entirely subsumes" the Wisconsin class, so resolving the Arizona case would resolve this case; and letting both proceed risked "conflicting class definitions or competing class actions."
The Court was not convinced and put it simply: "The plain fact, however, is that the plaintiffs in the two cases, at least at this time, are not the same."
No class has been certified in Arizona, so the Wisconsin plaintiff is not a party there, has nothing pending there, and is not bound by anything that happens there. It is a class member in the same sense that anyone is a lottery winner before the drawing.
Even if the class is eventually certified in the Arizona case, the court noted that the plaintiff presumably would opt-out int he event the Ninth Circuit holds that the TCPA does not apply to an online fax.
The court further noted that the plaintiff "is entitled to bring its case against [the defendant] in the district in which it is located." Same counsel, different clients, different districts, different appellate law — none of that makes the second suit improper. Whether either proposed class should be certified is, in any event, "premature."
As for waiting on the Ninth Circuit, the court noted that a stay "makes no sense" because "that court's decision will not be binding in this case" since Wisconsin is located within the Seventh Circuit.
