In St. Louis Heart Center v. Nomax, Inc., the Eighth Circuit held that an “alleged failure to provide a technically compliant opt-out notice” in a fax advertisement, without more, does not give a plaintiff Article III standing to bring a Telephone Consumer Protection Act (“TCPA”) claim.
The Eighth Circuit’s decision requires that the alleged injury be “traceable” to statutory non-compliance. In other words, the plaintiff must show a causal connection between the harm she suffered and the defendant’s TCPA violation.
By way of background, the TCPA and FCC’s TCPA regulations prohibit unsolicited fax advertisements unless they contain a notice that gives the recipient certain information that would allow it to opt out from future faxes. Here, St. Louis Health Center sued pharmaceutical manufacturer Nomax, Inc. for: (1) sending fax advertisements without the plaintiff’s consent; and (2) failing to provide a proper opt-out notice on each advertisement.
After removing the case to federal court, Nomax moved to dismiss for lack of Article III standing. To establish Article III standing, a plaintiff must show “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Following the Supreme Court’s decision in Spokeo, there has been considerable discussion among courts and commentators about plaintiffs’ ability to bring TCPA claims based on technical non-compliance.
The Eighth Circuit entered the debate and rejected plaintiff’s standing arguments.
First, the Eighth Circuit found that the plaintiff’s alleged statutory injury did not arise from a lack of consent, because plaintiff’s proposed class definition included faxes for which consent did, in fact, exist. Plaintiff also conceded that its lawsuit “is not based upon the fact that consent was not given.”
Next, the Eighth Circuit rejected plaintiff’s argument that failure to provide a proper opt-out notice created an Article III injury by raising the cost of paper and toner, occupying phone lines, and invading plaintiff’s privacy. The court found that the injury was not traceable to the statutory violation. Because the fax advertisements contained check boxes and return fax contact information (fax number, telephone number, name, and email address), which gave plaintiff enough information to opt out of future faxes, the Eighth Circuit reasoned that the alleged injury would have resulted regardless of whether the opt-out notice was technically compliant or not.
Finally, the Eight Circuit also rejected the alternative argument that the failure to provide a TCPA-compliant opt-out notice was itself the injury (thus eliminating the traceability issue).
With this decision, the Eighth Circuit joins a growing number of courts that have held that a mere “technical violation” of the TCPA does not create Article III standing if the TCPA violation is not traceable to the injury the plaintiff suffered.
Our TCPA Working Group brings together more than 25 attorneys in our litigation, communications, commercial, and privacy practice areas. We provide regular TCPA counseling to clients from a broad range of industries, including technology, healthcare, communications, transportation, and financial services. We have secured dismissals and nominal settlements for clients in TCPA actions and have worked with the FCC to clarify rules addressing a number of key TCPA issues. We also have significant experience in TCPA appeals.
The authors thank Ryan Thompson for his assistance in preparing this article.