299 F. Supp. 3d 389
D. Conn.2018Background
- Gorss Motels sued AT&T Mobility LLC and AT&T Mobility National Accounts LLC under the TCPA/JFPA, alleging receipt of an unsolicited advertising fax on or about Jan. 13, 2014.
- The fax promoted AT&T products (Mobile Share Value Plan) and stated the products/services were provided by AT&T, not Wyndham; Plaintiff alleges the fax was sent on AT&T's behalf pursuant to an agreement with Wyndham.
- Plaintiff alleges it did not give AT&T prior express permission and that the fax used its fax machine, consumed toner/paper, wasted employee time, and invaded privacy.
- The fax contained fine-print opt-out instructions (email and toll-free number) that Plaintiff alleges violate 47 C.F.R. § 64.1200(a)(4) because they are not "clear and conspicuous," do not state that failure to comply is unlawful, and do not provide a fax number for opt-out.
- AT&T moved to dismiss for failure to plead lack of consent (arguing any consent to Wyndham would bar the claim) and for lack of standing (arguing mere opt-out technical deficiencies are insufficient under Spokeo).
- The Court denied the motion: it found Plaintiff adequately alleged the fax was unsolicited (AT&T qualifies as the "sender" because its goods were advertised) and that Plaintiff alleged concrete injuries sufficient for standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fax was "unsolicited" under TCPA | Fax was sent without AT&T's prior express permission; AT&T is the "sender" because its goods were advertised | Even if Wyndham physically sent the fax, any consent to Wyndham precludes liability for AT&T | Held for Plaintiff: AT&T qualifies as "sender" under regulations; complaint plausibly alleges fax was unsolicited |
| Whether Plaintiff must plead lack of consent to the physical sender (Wyndham) | Not required — sender definition focuses on party on whose behalf or whose goods are advertised | Consent to Wyndham defeats claim against AT&T unless Plaintiff denies consenting to Wyndham | Held for Plaintiff: plaintiff need not allege lack of consent to Wyndham at pleading stage; factual disputes can be resolved later |
| Whether failure to include compliant opt-out notice transforms otherwise solicited fax into unsolicited one | Noncompliant opt-out renders fax impermissible and supports TCPA claim; Plaintiff alleged noncompliant notice | Opt-out provided means to opt-out; a technical opt-out defect is a bare procedural violation insufficient for standing | Held for Plaintiff: alleged noncompliant opt-out can render the fax unsolicited; alleged injuries are concrete and confer standing |
| Whether Plaintiff has Article III standing to sue based on alleged injuries | Alleged concrete harms (toner, phone line use, employee time, privacy intrusion) and statutory procedural violation give rise to concrete injury | Opt-out deficiency alone is a purely procedural/technical harm under Spokeo and insufficient for standing | Held for Plaintiff: allegations of tangible burdens and invasion of privacy (and the statutory interest) are concrete; standing satisfied |
Key Cases Cited
- Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (party whose goods/services are advertised may be treated as the "sender")
- CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011) (consent can be implied where plaintiff knowingly exposed contact information to directories expecting solicitations)
- Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016) (some procedural-right violations can supply concrete injury required by Spokeo)
- Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (U.S. 2016) (a bare procedural violation, divorced from concrete harm, may not satisfy Article III)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (TCPA protects against unwanted intrusion and nuisance of unsolicited faxes/telemarketing)