A federal judge in the United States District Court for the Eastern District of Missouri recently dismissed a claim alleging multiple violations of the TCPA’s do-not-call regulations upon finding that plaintiffs had failed to sufficiently plead the traceability element of standing. Thompson v. Vintage Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052 (E.D. Mo. Feb. 8, 2024). This decision follows a similar ruling issued by the same judge just last month in another case involving the same plaintiffs (discussed here).

In the Vintage Stock case, the plaintiffs’ complaint asserted three counts: (1) violation of “the Federal Do Not Call List statute and regulations”; (2) violation of 47 C.F.R. § 64.1200(d); and (3) violation of Missouri’s no-call-list statute, MRS § 407.1098.

Count 2 – Traceability Concerns

In dismissing Count 2, the Court reasoned that the plaintiffs did not sufficiently plead facts to demonstrate standing—specifically, to show that their injury was fairly traceable to the defendant’s conduct. The plaintiffs alleged that the defendant failed to (1) institute procedures for maintaining a list of persons who request not to be called; (2) have a written policy, available upon demand, for maintaining a do-not-call list; and (3) train and inform its personnel engaged in any aspect of telemarketing of the existence and use of the do-not-call list.

However, the plaintiffs did not allege that they ever asked the defendant to place them on its internal do-not-call list, or even not to contact them. Therefore, even if the defendant had done each thing the plaintiffs claimed it failed to do, the plaintiffs would still have suffered the exact same alleged harm.

Counts 1 and 3 – Fail-Safe Class Concerns

Separately, the Court rejected the defendant’s request to dismiss the class allegations as to Counts 1 and 3. The Court found that while the factual allegations regarding whether the defendant sent texts to thousands of people were somewhat implausible at the pleading stage, this was “understandable” as that information fell within the defendant’s sole possession.

However, the Court did strike certain class definitions for these two counts because they included an impermissible fail-safe class.

In Count 1, the Court was particularly concerned with language in the plaintiffs’ alternative class allegations related to advertising and consent, especially considering the common questions of law and fact that the plaintiffs pleaded. The first common question was whether the members of the class consented. Thus, the Court found that if consent was included as part of the class definition, and if the answer was “no” for any class member, then that member would “simply not be part of the class” and would not be bound by an adverse judgment. The second common question was whether the text messages contained material encouraging the purchase of the defendant’s goods. Similarly, the Court found that if the answer was “no,” the members receiving those texts “don’t lose,” they “simply are not a part of the class.”  For these reasons, the Court struck certain class allegations to alleviate these fail-safe class concerns.

For Count 3, the proposed class included persons who received more than one telephone solicitation in violation of the Missouri statute. As drafted, class membership would turn on a determination of whether a text is a “telephone solicitation” under state law and whether the text violated the statute. Thus, the proposed class would have required the Court to determine contested elements of liability to certify a class. Therefore, the Court also struck this definition as an impermissible fail-safe class.

Takeaway

The Vintage Stock decision adds to a growing body of cases suggesting that plaintiffs do not necessarily have Article III standing to sue for TCPA violations if they do not make a direct request to be included on internal do-not-call lists. It also underscores the importance of making early challenges to fail-safe class definitions, which can help to narrow the scope of the class at the outset—before opening the doors to discovery.