Burr & Forman

08.7.2018   |   Blog Articles, Faxes, Telephone Consumer Protection Act

Eighth Circuit Holds Deficient Fax Opt-Out Notice Does Not Create Case or Controversy

St. Louis Heart Center, Inc. v. Nomax, Inc., No. 19-1794, 2018 WL 3719694 (8th Cir. Aug. 6, 2018)

Plaintiff filed a class action lawsuit in state court, alleging Defendant sent it 12 fax advertisements without including proper opt-out notice. Defendant removed the case to federal court, then sought dismissal for lack of Article III standing. Unsolicited faxes require an “opt-out” notice meeting certain requirements: (1) they must be “clear and conspicuous and on the first page of the advertisement;” (2) state that the recipient may request that the sender not send future advertisements and that the sender must comply within 30 days; (3) set forth the requirements for an opt-out request; (4) provide a domestic contact telephone number and a fax number by which the recipient may transmit the opt-out request; and (5) set forth a cost-free mechanism by which the recipient can transmit the opt-out request. The telephone number, fax number and cost-free mechanism identified in the notice also must permit the recipient to make an opt-out request 24 hours a day, 7 days a week.

Assuming that Plaintiff’s allegation about loss of toner paper, wasted time, and invasion of privacy were sufficient to allege an injury in fact, the Court of Appeals stated that even with an alleged injury, a plaintiff “also must establish that its alleged injury is fairly traceable to an alleged violation of the TCPA,” adding that on this prong, Plaintiff’s showing was insufficient. The Court of Appeals pointed to the district court’s recognition that Plaintiff “both invited and did not rebuke” the challenged faxes. Thus, whether the faxes contained the proper opt-out notice, their transmission would have used Plaintiff’s paper, toner, occupied its phone lines and invaded its privacy. “Because there was no ‘causal connection between the injury complained’” Plaintiff did not establish traceability.

The Court of Appeals further affirmed the district court’s conclusion that the opt-out notice did convey the “‘means and opportunity to opt-out of receiving future faxes’” as not being clearly erroneous, adding that “[w]hatever 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. All twelve faxes also contained a phone number and an email address for a [Defendant] representative. Yet [Plaintiff] testified that he never attempted to opt-out of receiving future faxes from [Defendant] and there is no evidence that [Defendant] would have ignored such a request. [Plaintiff] had the means and opportunity to opt out from receiving future facsimiles, but simply declined to do so. Any technical violation in the opt-out notices thus did not cause actual harm or create a risk of real harm.”

Holding that the district court properly concluded no case or controversy was present, the Court of Appeals did disagree with the district court’s dismissal of the case, concluding that the case should have been remanded to the state court from whence it came.

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