Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability
We have previously written—both in this blog and in articles—about district courts dismissing TCPA claims after finding that the alleged injuries were not “traceable to” (i.e., caused by) the purported TCPA violations. Last week, the Eighth Circuit in St. Louis Heart Center, Inc. v. Nomax, Inc., — F.3d —, 2018 WL 3719694 (8th Cir. Aug. 6, 2018), held that plaintiff and a putative class lacked Article III standing to allege that fax advertisements did not contain a proper opt-out notice. Defendant had moved to dismiss the case for lack of Article III standing after removing the case from state court and the district court dismissed the claim because the alleged injuries were not traceable to the purported TCPA violation.
Plaintiff filed a class action after receiving 12 faxes advertising defendant’s products. Six of the faxes included a box that the recipient could check “[i]f you wish to no longer receive faxes from Nomax Inc.[,]” while the other six contained a checkbox next to an inscription reading “Please do NOT fax to this office.” Id. at *1 (first alteration in original). All of the faxes provided a return fax number and the name, telephone number and email address for a contact person at defendant. Rather than attempting to opt-out, Plaintiff simply alleged it was damaged by the loss of paper and toner, the interference with its use of its fax machine and telephone line, and the loss of employees’ time spent reviewing the faxes.
After assuming that the alleged damages were sufficient to establish an injury in fact, the Eighth Circuit held that any such injury was not fairly traceable to the alleged TCPA violation, i.e., the technically non-compliant opt-out notice. First, the court found that consent to receive faxes was not an issue because plaintiff previously requested samples from defendant and because plaintiff’s counsel represented that it was not bringing claims based on a lack of consent. “In that posture,” according to the Court, the alleged injury is not traceable to the defendant’s “alleged failure to provide a technically compliant opt-out notice. Whether or not the faxes contained a proper opt-out notice, their transmission would have used the Heart Center’s paper and toner, occupied its phone lines, and invaded its privacy.” Id. at *3.
The Eighth Circuit also rejected the argument that the alleged failure to provide an opt-out notice that met all regulatory requirements was itself an actionable, concrete injury. “Whatever technical deficiencies might have appeared in the opt-out notices, all twelve faxes contained a box that the recipient could check if he did not wish to receive future faxes, and a domestic fax number to which the form could be returned” but plaintiff did not avail itself of those options. Id. The Eighth Circuit therefore affirmed the lack of standing but held that the district court should have remanded the case to state court, where it was originally filed, pursuant to 28 U.S.C. § 1447(c), which directs district courts to remand removed cases if it determines it lacks subject matter jurisdiction at any time before final judgment.
The Eighth Circuit’s decision strengthens an important defense in TCPA cases. Plaintiffs may be hard pressed to trace their alleged injuries to technical violations and, as more courts adopt this “traceability” reasoning, plaintiffs may find the federal courts an unfriendly forum.