Richard B. Newman
Member
Last year, two federal courts dismissed TCPA claims because the alleged harm was found to not be “traceable” to the alleged violations. In both maters, the court opined that the alleged violation was not, in fact, the act of dialing a number. Rather, the alleged violation was the act of dialing a number with an automatic telephone dialing system.
In short, the courts found that the plaintiffs’ alleged injuries would have been identical had the defendants dialed their numbers manually. Consequently, the courts held that there was no Article III standing because the alleged injuries were not traceable to the use of an ATDS.
In January 2017, in the matter of ARcare v. Qiagen North American Holdings, Inc. (C.D. Cal. Jan 19, 2017), the Central District of California dismissed an action arising from the alleged receipt of multiple unsolicited faxes based upon a similar rationale, to wit, that the alleged injuries were not traceable to the purported violations.
Despite the court finding that alleged damages of “lost paper, toner, ink, and the time that could have otherwise been spent on business activities” were “sufficiently concrete and particularized to satisfy Article III’s injury in fact requirement,” the court held that the injuries were not traceable or related to the defendant’s alleged violation of the TCPA.
According to the court, “[a] plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.”
The court also noted that “[a]lthough the TCPA provides a fax recipient with the right to bring a private suit for receiving an unsolicited fax which lacks a TCPA-compliant opt-out notice, the recipient lacks standing to bring a claim under the TCPA unless he can also allege a concrete and particularized harm caused by the TCPA violation.”
Contact an advertising lawyer if you would like to discuss the design and implementation of compliant marketing campaigns, or if you are the subject of a local, state attorney general or Federal Trade Commission investigation or enforcement action.
These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result.
In short, the courts found that the plaintiffs’ alleged injuries would have been identical had the defendants dialed their numbers manually. Consequently, the courts held that there was no Article III standing because the alleged injuries were not traceable to the use of an ATDS.
In January 2017, in the matter of ARcare v. Qiagen North American Holdings, Inc. (C.D. Cal. Jan 19, 2017), the Central District of California dismissed an action arising from the alleged receipt of multiple unsolicited faxes based upon a similar rationale, to wit, that the alleged injuries were not traceable to the purported violations.
Despite the court finding that alleged damages of “lost paper, toner, ink, and the time that could have otherwise been spent on business activities” were “sufficiently concrete and particularized to satisfy Article III’s injury in fact requirement,” the court held that the injuries were not traceable or related to the defendant’s alleged violation of the TCPA.
According to the court, “[a] plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.”
The court also noted that “[a]lthough the TCPA provides a fax recipient with the right to bring a private suit for receiving an unsolicited fax which lacks a TCPA-compliant opt-out notice, the recipient lacks standing to bring a claim under the TCPA unless he can also allege a concrete and particularized harm caused by the TCPA violation.”
Contact an advertising lawyer if you would like to discuss the design and implementation of compliant marketing campaigns, or if you are the subject of a local, state attorney general or Federal Trade Commission investigation or enforcement action.
These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result.
