Federal Deception Law: 7.4.5 Article III Standing in Junk Fax Cases
The sending of junk faxes is another common type of TCPA violation.416 Junk faxes cause both tangible and intangible injuries that meet Article III’s requirements.
The sending of junk faxes is another common type of TCPA violation.416 Junk faxes cause both tangible and intangible injuries that meet Article III’s requirements.
A few of the TCPA’s requirements focus on information that must be provided to the consumer. For example, certain junk faxes must contain an opt-out notice.438
In order to be prepared for Article III issues, TCPA complaints should include allegations regarding the specific harm caused by the violation.454 An unreported Third Circuit decision holds that a plaintiff must allege one of the injuries that the TCPA is intended to prevent, such as nuisance and invasion of privacy.455 The following are sample general allegations about harm for TCPA cases involving telephone calls or text messages:456
The preceding sections have focused on the Article III standing requirement of a concrete injury. Another element that must be shown to establish Article III standing is that the injury the plaintiff suffered is “fairly traceable to the challenged conduct of the defendant.”460
The party invoking federal jurisdiction bears the burden of establishing standing.472 For a case filed in federal court, the burden of establishing standing therefore falls on the plaintiff.473 However, when a defendant removes a case from state court to federal court, it is the defendant who is invoking federal jurisdiction and thus the defendant that bears the burden of showing that the plaintiff has standing.474
When a defendant removes a case from state court to federal court, it is the defendant who is invoking federal jurisdiction, so the defendant bears the burden of showing the plaintiff’s standing.483 The federal court will afford the defendant the opportunity to establish that Article III standing in fact exists, but if the court concludes that standing is lacking it will remand the case.484 The proper remedy is not to dismiss the case, but to remand it to state court.
A court can exercise personal jurisdiction over a defendant that purposely avails itself of the privilege of conducting activities in the forum state—or purposefully directs its activities to residents of the forum state—where the cause of action arises out of or relates to the defendant’s contacts with the forum state.499 Directing unwanted calls to cell phone numbers with area codes assigned to a state is sufficient to allow that state to exercise personal jurisdiction over the caller and the person or entity that directed that the calls be
Much consumer litigation today faces questions as to whether an individual or class action can be litigated in court or whether it must be brought individually in an arbitration proceeding. Consumer approaches to challenging arbitration requirements are set out in detail in NCLC’s Consumer Arbitration Agreements.508 This subsection provides a thumbnail description of some of the ways to challenge an arbitration requirement, with special applicability to TCPA actions.
Arbitration requirements are a matter of contract, and the defendant cannot require arbitration unless it can produce an arbitration agreement binding on the plaintiff. It is not enough to allege that there is an agreement or to produce a boilerplate agreement. The defendant must produce the actual agreement consented to or otherwise binding on the plaintiff.511 The result is no different for TCPA cases.512
In TCPA cases, defendants often claim that the consumer has consented to arbitration through certain interactions with a website.
Even when a binding arbitration agreement is produced, the defendant may not have the right to enforce the agreement, or the consumer may not be bound by the agreement, if the defendant or consumer was not a party to it.
Often a TCPA defendant will rely on an arbitration clause found in an agreement that has since been cancelled or completed. After the relationship is terminated, the TCPA defendant may engage in calls or other communications attempting to establish a new relationship. There are strong arguments that an arbitration clause does not survive the termination of the agreement between the parties.534
An arbitration agreement only applies to disputes covered by the agreement. In one case, the consumer had signed an arbitration agreement with Comcast, but the consumer sued because Comcast’s calls to the consumer were intended for another customer. Calls intended for another customer were not disputes between Comcast and the consumer that were covered by the scope of the arbitration clause, so arbitration was not required.538
Even if there is consent to an arbitration agreement and the arbitration requirement is found to apply to the TCPA parties and the TCPA claim, there are other possible challenges to an arbitration:
A complicating issue in many challenges to an arbitration agreement is that most arbitration agreements today delegate to the arbitrator issues of the arbitration agreement’s enforceability.
Consumer attorneys are generally better off seeking relief in court and not in arbitration, particularly since arbitration agreements typically prohibit class arbitration. Nevertheless, if an arbitration requirement cannot be avoided or it will prove too costly to seek to defeat the requirement, a remaining avenue for relief is an individual arbitration action.
In AT&T Mobility L.L.C. v.
Because of the difficulties involved in engaging in class arbitration or individual arbitration on behalf of many individual consumers, an increasingly utilized option is a procedure sometimes called “mass arbitration.” The practice takes its name from “mass torts,” which involves the filing of many individual personal injury complaints—often for product liability, toxic tort, or similar cases—that involve factually similar predicates but do not lend themselves to class treatment. Another name for mass arbitration is an “arbitration swarm.”
A TCPA complaint must plead the necessary facts to support the legal claims made,569 although it need not be pleaded with particularity.570 Including background information about the TCPA and the calling practices at issue may be helpful to the court.571 Allegations about online complaints posted by other consumers are proper because they add to the plausibility of the plaintiff’s allegations, support a claim that the viol
There is some authority that the complaint need not allege facts connecting the defendant to the calls in question.577 However, vague allegations that the defendant was responsible for calls are likely to be insufficient.578 In addition, some courts have gone far beyond the requirements of Rule 8, requiring elaborate allegations to rebut a potential assertion by the defendant that some other entity made the call and falsely claimed to be calling on behalf of the
If the claim is based on the use of an autodialer, the complaint must include some specificity.587 Examples of allegations that courts have held sufficient include the defendant’s general use of an autodialer or a specific kind of autodialer, the plaintiff’s receipt of multiple scripted calls, and that the call bore telltale signs of an automated call, such as an obviously artificial voice, a message asking the consumer to press one of several keys, or a gap between picking up the call and a human being coming on the line.
A complaint need not provide extensive information about a call to support an allegation that it was prerecorded.596 However, some courts do require more than just an allegation that it was prerecorded.597 An allegation that a call was prerecorded based on the clarity and cadence of a voice message and the absence of anything specific, such as the name of the person being called, is sufficient.
For a call based on a violation of the nationwide do-not-call rule, pleading that the plaintiff had placed the number on the registry more than 30 days before the calls were made is sufficient, and it is not necessary to plead the date the number was registered.602 The plaintiff must plead that the phone that was called was being used as a residential phone.603 For protections that apply only to residenti
Since consent is an affirmative defense,606 it should not be necessary for the plaintiff to plead the absence of consent.607 However, if a suit is based on the plaintiff’s revocation of consent, it is wise to plead at least the approximate date of the revocation, and that the actionable calls occurred after that date.608