Spokeo in the Wild: How a Non-Collections Defendant Defeated a Class-Action TCPA Lawsuit

WHO: Defendant EKF Diagnostics. They’re not a collection agency, they’re “a global medical diagnostics business with a long history in point-of-care testing and central laboratory manufacturing.” They are also the defendants in class-action TCPA lawsuit filed by…

WHO ELSE: Plaintiff Dr Barry Sartin, a pathologist in Metairie, Louisiana, the lead on this class action suit.

WHAT: Dr Barry Sartin filed a class-action lawsuit against EKF Diagnostics for “allegedly [sending] unsolicited fax advertisements,” in violation of the TCPA — specifically, the “Junk Fax Prevention Act of 2005.”

Though Sartin received only “a single unsolicited fax advertisement” (per an article posted on Lexology.com; the case, too, only references one fax, submitted into evidence, by Sartin), the class-action case was built on the assumption that Sartin’s single fax was part of a larger fax campaign.

The Court found for the defendant, EKF Diagnostic, who sent the fax, and not for the plaintiffs, Dr Barry Sartin, et al.

WHEN: The fax to Sartin was sent on 24 September 2014. The case was filed 5 July 2016.

WHERE: The United States District Court Eastern District of Louisiana

WHY: Why did the plaintiffs lose? Because the Court used Spokeo as the basis of its decision, and because the plaintiffs could not show any actual damage or harm in receiving the fax. In Spokeo, that ruling established that “Article III standing requires a concrete injury even in the context of a statutory violation” (per both Lexology and the Spokeo case). The Court made this explicit in its decision: “The complaint does not explain what factual harm, in Dr. Sartin’s view, lawmakers ‘contemplated’ when enacting the TCPA. Thus, its vague reference to Congress and the FCC provides no factual material from which the Court can reasonably infer what specific injury, if any, Dr. Sartin sustained through defendants’ alleged statutory violations. Absent supporting factual allegations, Dr. Sartin’s bare assurance that an unspecified injury exists is insufficient to establish Article III standing.”

insideARM Perspective

Spokeo is an interesting and exciting new development in TCPA cases because of this requirement of actual damages, rather than one-off accidental missteps. Actual changes to the TCPA may or may not be in the works; in the meantime, we have Spokeo.

Seeing other industries outside debt collection use — and succeed with — Spokeo is a positive development. We’ll continue to monitor such cases, both in- and outside the ARM space.