E-Alert Case Updates

No Private Cause Of Action Under TCPA For Failure To Mark Date & Time

Zaller, LLC v. Pharmawest Pharmacy LTD
(D.Md.) (Nov. 8, 2011)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiff Stewart T. Zaller, LLC (“Zaller”), filed suit against Defendants, Pharmawest Pharmacy, LTD. (“Pharmawest”) and a “John Doe Faxes Broadcaster,” alleging violations of the Federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Maryland Telephone Consumer Protection Act (“Maryland TCPA”), MD. CODE ANN., COM. LAW, §§ 14-3201 to 3202.

Zaller alleged receipt of at least ninety (90) unsolicited faxes advertising the availability of botox and other drugs and services at the website www.NorthWestPharmacy.com. The complaint alleged that the faxes failed to include proper opt-out notices, and a portion of them additionally failed to communicate the date and time sent, as required by the TCPA. Zaller alleged that the website was Pharmawest’s website and that Pharmawest conspired with unnamed fax broadcasters, and other entities, to send the unsolicited faxes. The complaint included four (4) counts: Count One for monetary relief under the TCPA for the unsolicited nature of the faxes; Count Two for injunctive relief enjoining any further violations of the TCPA; Count Three for monetary relief for failure to provide the date and time on each fax; and Count Four for monetary relief under the Maryland TCPA.

Through Pharmawest’s Motion to Dismiss, Defendant argued that Count Three should be dismissed because there is no private right of action for a violation of the date and time requirement in the TCPA. The company also argued that the remaining counts in the complaint should be dismissed for failure to meet the pleading standards of Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly.

The TCPA contains an express private right of action for a suit “based on a violation of [the] subsection. The “[t]echnical and procedural standards” subsection that makes it “unlawful” to send a fax without marking the date and time on the transmission, however, contains no parallel express right. Courts have found that the lack of an express private right of action in § 227(d) limits private suits for violation of the TCPA’s notice provisions, allowing enforcement of this latter subsection only by state attorney’s general. Zaller, however, argued that the 2005 amendments to the TCPA made the express private right of action in § 227(b) applicable to § 227(d)’s technical and procedural standards as well. He contended that the amendments created the possibility of a separate violation of subsection § 227(b), which is therefore independently actionable under § 227(b)(3)’s express private right of action. The court, however, held that Zaller’s interpretation of the statute ignored the plain meaning of the TCPA. The new reference to § 227(d) is only added for the purpose of describing the newly codified exception to pre-existing § 227(b) liability. The reference should not be read to create a new separate cause of action for violations of the date and time provisions in § 227(d). Accordingly, the court granted Pharmawest’s Motion to Dismiss Count Three of the Complaint.

As to the sufficiency of the complaint relating to Counts One, Two, and Four, Pharmawest argued that the complaint failed to meet the Twombly and Iqbal pleading standards because it “fails to allege that Pharmawest was the entity that sent the facsimiles at issue,” and “provides no basis for any allegation that Pharmawest sent any of the facsimiles at issue.” The court pointed out, however, that the complaint alleged that Pharmawest sent the facsimiles at issue. Also, the court noted that whether the complaint actually provided sufficient factual basis for this allegation was a separate question, but was one that should be answered in the affirmative. After a review of the factual allegations of the complaint, the court held that the facts were enough to raise Zaller’s right to relief above speculative level, and thus to satisfy the requirements of Twombly and Iqbal.

Pharmawest’s Motion to Dismiss count three of the complaint was granted. A private plaintiff may not allege a separate violation of the TCPA based solely on the failure to mark fax ads with the date and time. However, Pharmawest’s Motion to Dismiss as to Counts One, Two, and Four was denied. The portions of the complaint alleging violations of § 227(b) of the TCPA were found to meet the pleading standards of Twombly and Iqbal.