The Eighth Circuit recently dismissed a TCPA claim for lack of Article III standing after concluding that the alleged injuries were not caused by (“traceable”) the purported TCPA violations. St. Louis Heart Center, Inc. v. Nomax, Inc. (8th Cir. Aug. 6, 2018).

In Nomax, the plaintiff filed a class action after receiving a number of promotional fax advertisements. Some of the faxes had a box that the recipient could check “[i]f you wish to no longer receive faxes from Nomax Inc.” The others had a checkbox with adjacent language, reading “Please do NOT fax to this office.” All possessed a return fax number and specific contact information.

Plaintiff did not attempt to opt-out.   Rather, plaintiff alleged that it was damaged to the tune of lost paper and toner and inconvenience.

The Eighth Circuit held that the alleged injury was not reasonably traceable to the alleged TCPA violation, to wit, the opt-out notice. Specifically, the court noted that plaintiff consented to receive the faxes and would have incurred the alleged damage regardless of the sufficiency of the opt-out notice. The court also rejected the argument that the alleged failure to provide an opt-out notice that met all regulatory requirements was 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.”

Takeaway: Defendants should consult with an experienced telemarketing lawyer to evaluate available TCPA defenses early on in the litigation process, including, but not limited to, whether the plaintiff is able to trace alleged injuries to concrete harm.

Richard B. Newman is a telemarketing compliance lawyer at Hinch Newman LLP.  Follow him on LinkedIn at FTC Lawyer.

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