Antitrust Law Daily Wrap Up, PRIVACY—E.D. La.: Lack of injury dooms class action TCPA claims, (Jul 8, 2016)

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

A class action complaint alleging that the sending of unsolicited faxes, which advertised medical products and services, violated the Telephone Consumer Protection Act (TCPA) was dismissed by the federal district court in New Orleans. The plaintiff failed to allege a concrete injury-in-fact and therefore lacked standing to bring his TCPA claims (Sartin v. EKF Diagnostics, Inc., July 5, 2016, Vance, S.)

After receiving an unsolicited fax advertisement from Stanbio Laboratory, Dr. Barry Sartin filed a class action complaint against Stanbio Laboratory and its parent company, EKF Diagnostics, (collectively, "defendants"), which alleged a violation of the TCPA. According to Sartin, the fax he received was part of a larger campaign in which the defendants purchased lists of fax numbers from third parties and "blasted thousands of junk faxes to businesses" without obtaining prior consent.

The defendants responded by filing a motion to dismiss the complaint for lack of standing, or, in the alternative, to strike the class allegations as insufficient to establish an ascertainable class.

The defendants argued that Sartin’s allegations failed to establish the first and foremost of the three elements necessary for standing, "injury-in-fact". The court agreed. After noting that a plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement," it found that Sartin plausibly alleged a violation of the TCPA, but failed to plead facts demonstrating how this statutory violation caused him concrete harm.

Sartin argued in his opposition memorandum that he was injured by having to waste valuable time in reviewing the fax. The court found that, regardless of whether this allegation was sufficient to establish standing to assert a TCPA claim, an opposition to a motion to dismiss was not the place for a party to raise new factual allegations or assert new claims.

The court, however, denied the defendants’ motion to dismiss with prejudice because Sartin’s failure to adequately allege a concrete injury-in-fact might have reflected a mere pleading defect, rather than a more fundamental problem with his claims.

Because it granted the defendants’ motion to dismiss for lack of standing, the court denied, as moot, the motion to strike Sartin’s class allegations.

The case is No. 16-1816.

Attorneys: George Brian Recile (Chehardy, Sherman, Ellis, Murray, Recile, Stakelum & Hayes, LLP) for Dr. Barry Sartin. Isaac H. Ryan (Deutsch Kerrigan LLP) and Lewis S. Wiener (Sutherland Asbill & Brennan LLP) for EKF Diagnostics, Inc. and Stanbio Laboratory, LP.

Companies: EKF Diagnostics, Inc.; Stanbio Laboratory, LP

Cases: Privacy LouisianaNews