Class Action Lacks Standing to Allege TCPA Violations, Says Vintage Stock
Plaintiffs Sheila and Dennis Thompson “lack standing” to pursue Count II of their Dec. 4 class action alleging Vintage Stock violated the Telephone Consumer Protection Act (see 2301120009), said the home entertainment retailer in a memorandum Wednesday (docket 4:23-cv-00042) in support of its motion to dismiss Count II in U.S. District Court for Eastern Missouri in St. Louis. The Thompsons lack Count II standing because they didn't allege any harm due to purported violations of the TCPA’s “technical requirements,” it said.
Vintage Stock further moves to dismiss all of the Thompsons’ class-action claims in their entirety, “as they fail to plead sufficient factual allegations in support,” said the memorandum. The retailer alternatively moves to strike the complaint’s class allegations on all counts “on the basis that the classes as pled cannot be pursued,” it said.
The Thompsons allege Vintage Stock sent them text message solicitations for several years to a cellphone number listed on the national do not call registry and on Missouri’s no-call list, said the memorandum. They concede they don’t know how many text messages were sent but nevertheless allege there have been dozens, Vintage Stock said. The Thompsons incorporate just three messages into their complaint via screenshot, it said.
The Thompsons purport to represent a class consisting of all persons within the U.S. who received text-message solicitations from Vintage Stock in the four years before the filing of the lawsuit and who had not consented to the texts as required by law, said the memorandum. “But these class definitions are patently fail-safe, and therefore invalid as a matter of law,” it said. Case law says a fail-safe class is prohibited because it would allow putative class members to seek a remedy but not be bound by an adverse judgment, it said: “Either those class members win or, by virtue of losing, they are not in the class and are not bound.”
Count II must be dismissed because the Thompsons “do not allege that they have suffered any harm as a result of purported technical violations of the TCPA,” said the memorandum. They don't allege, for example, they requested, and were denied, a copy of any written policy on Vintage Stock’s telemarketing practices, “or even that they suffered an Article III injury as a result,” it said.
In asserting all of their class-action claims, the Thompsons “offer nothing beyond boilerplate allegations and recitations of the statutes,” said the memorandum. They allege, “without any specific factual support,” that Vintage Stock sent them dozens of messages over the past several years, though they don't know the actual number and attach only three messages dating only to July 2021, not several years, it said.
The Thompsons further allege, also without factual support, that Vintage Stock sent messages to thousands of Americans per month without their consent, said the memorandum. Their “conclusory and bare” allegations of numerous plaintiffs “do not suffice under Rules 8 and 12,” it said. Their failure to allege factual support for their class allegations “is all the more glaring,” because Vintage Stock’s website “includes several provisions seeking customers’ TCPA-compliant consent for receiving messages,” it said.