Antitrust Law Daily Wrap Up, PRIVACY—D. N.J.: Some affirmative defenses to alleged TCPA violations stricken, (Jan 14, 2016)

By Michael Menzhuber, J.D., LL.M.

Motions to strike several affirmative defenses asserted by an online marketing company, which allegedly sent unsolicited text messages in violation of the Telephone Consumer Protection Act (TCPA), were granted in part and denied in part by the federal district court in Newark. The court also struck the marketing company’s “general reservation” of affirmative defenses (Vazquez v. Triad Media Solutions, Inc., January 13, 2016, Walls, W.).

After receiving an unsolicited text message to her cell phone that promoted a drawing for a scholarship, Norma Vazquez filed a class action complaint against the sender of the message, Triad Media Solutions, Inc., alleging a violation of the TCPA. In response, Triad filed an answer and twelve separate affirmative defenses.

Vazquez filed a motion to strike several of these affirmative defenses. The court addressed her arguments that: (1) the seventh and eighth affirmative defenses—alleging waiver, estoppel, and First Amendment rights—should be struck because they failed to provide Vazquez with fair notice; (2) the third, eighth, ninth and tenth affirmative defenses—alleging a business relationship between the parties, legal insufficiency, excessive fines, and failure to mitigate damages—should be struck because they were legally insufficient; and (3) the eighth and ninth affirmative defenses—raising constitutional questions—should be struck for violating Federal Rule of Civil Procedure 5.1 by not serving notice on the U.S. Attorney General. Vazquez also argued that Triad could not reserve the right to add additional affirmative defenses.

Fair notice challenges. The court determined that Triad’s Seventh affirmative defense, “Plaintiff’s claims are barred by the doctrines of waiver and/or estoppel,” failed to provide Vazquez with fair notice. It based this decision on its finding that Triad: (1) did not explain how or why the doctrines applied to any of the claims or facts at issue; (2) did not demonstrate a “logical relationship,” or any relationship at all, between the defense and Vazquez’s allegations; and (3) did not refer to any facts or premises in the case. For these same reasons, the court determined that Triad’s eighth affirmative defense also failed to provide fair notice.

Legal insufficiency challenges. The court decided that Triad’s third affirmative defense, that the claims of Vazquez and her class members were barred to the extent that they had an established business relationship, was legally insufficient. It noted that the Third Circuit has held that the “established business relationship” exemption applied only to residential lines, and Vazquez alleged that she and the other class members received text messages on their cell phones.

The court denied Vazquez’s motion to strike Triad’s eighth affirmative defense for legal insufficiency because: (1) the insufficiency of the defense was not clearly apparent and (2) her motion required the court to determine an unclear question of law, in the absence of binding circuit precedent.

In its ninth affirmative defense, Triad argued that the aggregated statutory damages sought by the class might constitute excessive fines in violation of the Eight Amendment to the United States Constitution. The court disagreed because the Supreme Court has held that the Eight Amendment’s “Excessive Fines Clause” does not constrain an award of money damages in a civil suit, when the government neither prosecuted the action nor has any right to receive a share of the damages awarded.

The court denied Vazquez’s motion to strike Triad’s tenth affirmative defense, on the basis of legal insufficiency, because: (1) she did not cite any binding Third Circuit authority in support of her argument and (2) her motion to strike required the court to determine an unclear question of law, in absence of binding circuit precedent.

Notice of constitutional challenges to statutes. The court determined that Triad’s eighth and ninth affirmative defenses were barred to the extent that they failed to comply with the requirements of Rule 5.1.

Triad’s right to supplement and/or amend its answer and affirmative defenses. The court agreed with Vazquez that Federal Rule of Civil Procedure 8 does not allow a “general reservation” of affirmative defenses, as sought by Triad. Consequently, it struck Triad’s “reservation” to the extent that it could be read as an attempt to secure the right to assert additional affirmative defenses without leave of the court.

The case is No. 15-cv-07220 (WHW) (CLW).

Attorneys: Joseph J. DePalma (Lite, DePalma, Greenberg, LLC) for Norma Vazquez. Kenneth J. Cesta (Bressler, Amery & Ross, PC) for Triad Media Solutions, Inc.

Companies: Triad Media Solutions, Inc.

Cases: Advertising Privacy NewJerseyNews