A Missouri federal court judge found that a plaintiff did not have standing to bring a claim under the Telephone Consumer Protection Act’s (TCPA) Internal Do Not Call (IDNC) regulations because the plaintiff had not first asked to be placed on the defendant’s IDNC list.

Dennis Thompson sued Genesco, Inc., alleging that, for years, the company sent numerous and annoying text messages to his cellphone advertising the sale of its products. He never provided consent for Genesco to send him texts, he told the court, and, at all relevant times, his cellphone number was registered on the Federal DNC Registry.

In his complaint, Thompson claimed Genesco ran afoul of the TCPA’s IDNC regulations found in 47 C.F.R. § 64.1200(d), which prohibit initiating telephone solicitations without first instituting procedures for maintaining an internal list of people who request not to be called. Specifically, Thompson alleged that Genesco failed to have a written policy, available upon demand, for maintaining its IDNC list, to train and inform its relevant personnel about the list, to maintain the list and to “keep notice” of the federal Do-Not-Call registry’s database.

Genesco moved for judgment on the pleadings, but, sua sponte, U.S. District Court Judge Stephen R. Clark ordered the parties to brief the issue of whether Thompson had Article III standing to bring his claim under § 64.1200(d). Article III standing requires that a plaintiff show (1) a cognizable injury, (2) that is fairly traceable to the defendant’s allegedly unlawful conduct, and (3) that the plaintiff’s injury is likely to be redressed by the relief requested.

While the court determined that Thompson could satisfy both the injury and redressability prongs, it concluded that there was no causal connection between Thompson’s alleged injury—the irritation resulting from the unwanted calls—and Genesco’s conduct—the alleged failure to maintain its IDNC list. The Court ultimately concluded that because Thompson never asked to be put on Genesco’s IDNC list, he was not injured when the company failed to add him to the list.

“[A]n obvious, critical link between his injury and those violations is glaringly absent: the factual allegation that Thompson actually asked to be put on that internal do-not-call list in the first place,” Judge Clark said. “Nowhere in his amended complaint does Thompson allege that he ever asked Genesco to place him on such a list, or simply not to contact him. In fact, Thompson does not allege any way in which he would have remotely benefited from Genesco’s compliance with § 64.1200(d).”

If Thompson could not allege a way—any way—in which he would appear on a Genesco internal do-not-call list, then his injury cannot be traced to Genesco’s failure to maintain one, the court added. Whether Genesco actually maintained the required list or not, Thompson would have suffered precisely the same injury.

“Without such a ‘causal connection,’ there is no traceability, and consequently, no Article III standing to challenge Genesco’s alleged failure to maintain compliance with § 64.1200(d),” Judge Clark concluded.

To read the memorandum and order in Thompson v. Genesco, Inc., click here.

Why it Matters

Without Article III standing, a lawsuit cannot proceed in federal court.  Courts finding that standing to bring an IDNC claim under the TCPA requires a request to be placed on the IDNC list (like the Eastern District of Missouri did again, a few weeks after Genesco, in Thompson v. Vintage Stock, Inc.), gives calling parties a powerful argument to be deployed early in the litigation when plaintiffs never asked to be included on the list in the first place.