November 27, 2021

Volume XI, Number 331

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“Threadbare Allegations” not Enough to Prosecute a TCPA Claim

Pleading a TCPA claim is usually not the tricky part for a plaintiff, and courts normally do not dismiss TCPA lawsuits on the pleadings alone. But a recent decision provides instructive guidance for the sort of threadbare allegations that fail to clear that initial hurdle.

Namely, the United States District Court for the Eastern District of Virginia recently dismissed a bare-bones TCPA complaint and putative class action filed by Craig Hicks. Hicks v. Alarm.com Inc., No. 1:20-cv-532, 2020 U.S. Dist. LEXIS 157433 (E.D. Va. Aug. 6, 2020). Mr. Hicks alleged that Alarm.com violated the TCPA because he received two text messages and one call from “Alarm.com.” Recounting Mr. Hicks’ allegations, the Court described them as “lean,” and observed that the “connection between these communications and” Alarm.com were “factually flimsy.” As a result, the Court agreed “that there are no facts detailing Alarm.com’s involvement in placing any calls,” nor did Mr. Hicks allege any facts to suggest Alarm.com sent the texts at issue. The Court also refused to credit Mr. Hick’s “conclusory” allegations and so it dismissed Mr. Hicks’ complaint.

Notably too, Mr. Hicks expressly disclaimed any theory of vicarious liability, which the Court described as “curious” given the absence of other supporting allegations. The Court noted that Alarm.Com had faced other lawsuits based on conduct by third-party dealers, but did not address the issue in greater detail given Mr. Hicks’ “abandonment” of the vicarious liability “legal theory.”

And, though not material to the dismissal, the Court criticized Mr. Hicks for relying on anonymous online complaints. The Court explained that “a total of nine anonymous online entries” did not qualify as “myriad online complaints” as Mr. Hicks argued. The Court found that Mr. Hicks’ characterization was “hyperbolic and unsupported.”

The Hicks case offers useful guidance for TCPA Defendants facing a new TCPA lawsuit. Where a plaintiff cannot link a call or text to a particular company, but instead resorts to hyperbole, anonymous internet allegations, and innuendo, the claim may fail on the pleadings alone.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 245
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About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

303-894-6111
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