Often defendants who are sued under the TCPA (Telephone Consumer Protection Act) argue that the damages are unfair and they represent a “windfall” to the plaintiff who “wasn’t really hurt.”
While it has no basis in law, the emotional and financial reasons for making this argument are plain. A defendant can face $1500 per call — per text — per fax. At a minimum it is $500 per call/fax/text.
We have had cases involving hundreds of calls — the damages can add up to a very high amount (high six figures) so the defendants make any argument possible to try to get judges to throw these cases out.
The Eleventh Circuit, on October 30, 2014, issued a very important decision that guts this argument. The case is Palm Beach Golf v. Sarris.
We’ll keep the discussion focused on the interesting way the Eleventh Circuit dismisses this argument but a few facts are necessary first.
On December 13, 2005, Plaintiff Palm Beach Golf Center-Boca, Inc. received an unsolicited one-page fax advertisement, promoting dental services provided by Defendant John G. Sarris, D.D.S., P.A., a Florida dental practice.
Among these was the December 13, 2005 transmission to Plaintiff Palm Beach Golf, a golf equipment store. Despite its successful transmission to Plaintiff, no employee of Palm Beach Golf could recall actually seeing or printing the fax advertisement. Rather, the evidence that the advertisement was transmitted by B2B, and received by Palm Beach Golf, is the Expert Report, which confirms the successful fax transmission, taking one minute of connection time, made to Plaintiff’s fax machine.
So the fax was made but the Plaintiff didn’t even know it. The equivalent is a text message (considered a “call” under the TCPA) was sent but you did not see it. Or a call was made that you missed.
Notice the argument by the violator of the law that the district court accepted:
Despite reaching the merits of Palm Beach Golf’s TCPA claim, the District Court further held that Palm Beach Golf lacked Article III standing, because it was unable to demonstrate that it had suffered an injury in fact. The District Court concluded that “nowhere in the statute does Congress express an intent to circumvent the requirement that a plaintiff have Article III case-or-controversy standing to bring a claim, which requires that the plaintiff demonstrate a distinct and palpable injury to himself.” Because there was no evidence that any employee of Plaintiff’s saw or printed the transmitted fax, the District Court concluded that Palm Beach Golf was unable to demonstrate that it had suffered a sufficiently concrete injury to establish standing under Article III.
Standing is the idea that you must have an actual injury before you go into a federal court and seek damages or other relief.
Palm Beach Golf insists that it was error for the District Court to hold that, because it failed to prove that the fax was printed or seen, it lacked Article III standing. For Plaintiff, the specific injury targeted by the TCPA is the sending of the fax and resulting occupation of the recipient’s telephone line and fax machine, not that the fax was actually printed or read. We agree.
“Article III of the Constitution confines the reach of federal jurisdiction to `Cases’ and `Controversies.'” Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244, 1252 (11th Cir. 2003) (quoting U.S. CONST. art. III, § 2). In order “[t]o establish Article III standing, an injury must be `concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149, 130 S. Ct. 2743, 2752 (2010)). Although Congress may not convert a generalized grievance “into an `individual right’ vindicable in the courts,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77, 112 S. Ct. 2130, 2144-45 (1992), “Congress may create a statutory right or entitlement[,] the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute.” Warth v. Seldin, 422 U.S. 490, 514, 95 S. Ct. 2197, 2213 (1975) (citing Linda R. S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S. Ct. 1146, 1148 n.3 (1973)). In other words, “[t]he actual or threatened injury required by Art[icle] III may exist solely by virtue of `statutes creating legal rights, the invasion of which creates standing.'” Id. at 500, 95 S. Ct. at 2206 (citation omitted) (quoting Linda R. S., 410 U.S. at 617 n.3, 93 S. Ct. at 1148 n.3).
The question now is whether the TCPA is one of these statutes that the violation of it creates the right to sue, even if there are no “real damages.”
The TCPA, in this instance, creates such a cognizable right. It is clear from the legislative history of the statute that the TCPA’s prohibition of unsolicited fax advertisements was intended to protect citizens from the loss of the use of their fax machine during the transmission of the fax data. See H.R. REP. NO. 102-317, at 10 (1991) (“FACSIMILE ADVERTISING[:] . . . This type of telemarketing is problematic for two reasons. First, it shifts some of the costs of advertising from the sender to the recipient. Second, it occupies the recipient’s facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.” (emphasis added)).
Further, Congress created a private right of action for enforcement of violations of the statute in section 227(b)(3) and provided statutory damages for a “junk” fax recipient. TCPA, 47 U.S.C. § 227(b)(3) (2006). Notably, a prevailing plaintiff need not have suffered any monetary loss in order to recover statutory damages. Chapman v. Wagener Equities, Inc., 747 F.3d 489, 491 (7th Cir. 2014) (“[N]o monetary loss need be shown to entitle the junk-fax recipient to statutory damages.”).
The court goes on to discuss this issue in the context of a “bounty hunter”:
Second, Palm Beach Golf possesses standing because the TCPA functions as a congressionally created “bounty,” permitting private individuals to sue based on a statutory violation. See Chapman, 747 F.3d at 491. In the ordinary case, mere statutory authorization of a citizen suit alone is not sufficient to create standing under Article III. See Lujan, 504 U.S. at 571-74, 112 S. Ct. at 2142-43. The Supreme Court, however, has carved out an exception to this rule for instances where Congress has created a statutory scheme by which it assigns an injury, inflicted upon the federal government, to private citizens. Specifically, Congress can assign an injury to the government’s sovereignty to private citizens for purposes of bringing suit. Where this has occurred, these private citizens possess Article III standing. See Vt. Agency, 529 U.S. at 774, 120 S. Ct. at 1863 (“[T]he United States’ injury in fact suffices to confer standing on respondent.”). Put another way, where a federal statute prohibits conduct, Congress may expressly permit individual citizens to bring suit against those who engage in the prohibited conduct. Such laws are not unlike qui tam statutes, which have been expressly recognized by the Supreme Court as sufficient for Article III standing purposes. See Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 778-79 (11th Cir. 2011) (citing Cook Cnty., Ill. v. United States ex rel. Chandler, 538 U.S. 119, 131, 123 S. Ct. 1239, 1247 (2003)).
The TCPA provides standing under this theory because it is a “bounty” statute, specifically providing a prevailing plaintiff $500 in statutory damages for each unlawful fax sent, as well as treble damages under certain circumstances for intentional violations of the statute. Chapman, 747 F.3d at 491 (“Nor does entitlement to statutory damages [under the TCPA] require any showing of injury of any sort, for such damages not only serve to compensate for injuries difficult to estimate in dollar terms, but also, like statutory compensation for whistleblowers, operate as bounties, increasing the incentives for private enforcement of law.“); Schlueter v. Latek, 683 F.3d 350, 356 (7th Cir. 2012) (“There are plenty of bounty-hunter statutes, see, e.g., . . . 47 U.S.C. § 227(b)(3) (Telephone Consumer Protection Act) (unsolicited text messages or fax advertisements).”); Critchfield Physical Therapy v. Taranto Grp., Inc., 293 Kan. 285, 298, 263 P.3d 767, 778-79 (2011) (relying on the U.S. Court of Appeals for the Seventh Circuit’s holding that the TCPA’s statutory damages scheme operates as a bounty). Through the TCPA, Congress intended to curb specific conduct, expressly prohibiting, among other things, the “use of any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement,” conduct alleged here of Defendant. TCPA, 47 U.S.C. § 227(b)(1)(C) (2006). Thus, under this theory, Palm Beach Golf has Article III standing as a result of Congress’s assignment to Plaintiff of the United States’ injury resulting from Sarris, D.D.S.’s alleged violation of the TCPA’s fax ban.
This, at least in the Eleventh Circuit (Alabama, Georgia, Florida) does away with the argument that it is unfair or improper for a plaintiff to get damages of $500-$1500 per call when, as the defendants like to say, “the plaintiff wasn’t even hurt!”
The TCPA is a bounty hunter statute and the whole purpose is to encourage consumers to file suit to enforce this law. Think of the old west movies where the bounty hunter is paid to bring in the criminal. No crime was committed against the bounty hunter but the government has an interest in the wrongdoer captured. Same here.
Stop the illegal calls/texts/faxes by incentivizing consumers to sue. The damages paid will incentivize businesses to stop violating the law.
(There is discussion of vicarious liability that you can read but the focus of this blog post is on the bounty hunter nature of the statute.)