United States District Court, E.D. Louisiana
CASSO'S WELLNESS STORE & GYM, L.L.C.
SPECTRUM LABORATORY PRODUCTS, INC.
ORDER & REASONS
D. ENGELHARDT, United States District Judge.
the Court is a Motion to Dismiss for Lack of Subject Matter
Jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) filed by the
defendant, Spectrum Laboratory Products, Inc.
“Defendant”). (Rec. Doc. 13). Plaintiff Casso's
Wellness Store and Gym, LLC (“Casso” or
“Plaintiff”) opposes the Motion. (Rec. Doc. 20).
Spectrum filed a reply in support of its Motion (Rec. Doc.
26), which was followed by Casso's sur-reply (Rec. Doc.
32). Now, having considered the extensive submissions of the
parties, the record, and the applicable law, the Court
DENIES the Motion to Dismiss for Lack of
Subject Matter Jurisdiction for the reasons stated herein.
Wellness Store and Gym, LLC (“Casso” or
“Plaintiff”) filed a putative class action suit
against Spectrum Laboratory Products, Inc.
(“Spectrum” or “Defendant”) under the
Telephone Consumer Protection Act of 1991
(“TCPA”), as amended by the Junk Fax Protection
Act of 2005 (“JFPA”), seeking to recover damages
for and to enjoin Spectrum's massive junk faxing
campaign. (Rec. Doc. 1, as amended by Rec. Doc. 9).
In its Complaint, Casso defines the “Plaintiff
Class” to include:
[A]ll persons and entities that are subscribers of telephone
numbers to which within four years of the filing of this
Complaint, Defendant sent facsimile transmissions with
content that discusses, describes, promotes products and/or
services offered by Defendant, and does not contain the
opt-out notice required by 47 U.S.C. §
227(b)(1)(C)(iii), (b)(2)(D), (b)(2)(E), (d)(2) or 47 C.F.R.
(Rec. Doc.1 at p. 6).
alleges that Spectrum violated the TCPA and the regulations
promulgated under the Act by the Federal Communications
Commission (“FCC”) by “blasting thousands
of [unsolicited] junk faxes nationwide” to advertise
their goods and/or services. (Rec. Doc. 1 at p. 4).
“Plaintiff further alleges that Defendant has blasted
junk faxes without complying with the Opt-Out Notice
Requirements, in direct violation of the TCPA, JFPA and the
FCC's regulations.” (Id.). Casso
identifies Spectrum's alleged violations of the Act as
including, but not limited to, the unsolicited facsimile
advertisements sent to Casso's facsimile telephone number
on December 21, 2016; February 14, 2017; February 17, 2017;
and February 24, 2017. (Id. at p. 9).
alleges that it has suffered the following damages as a
result of Spectrum's unsolicited faxes:
Defendant has imposed disruption, annoyance and cost on
Plaintiff. Among other things, these faxes tie up
Plaintiff's telephone lines and facsimile machines,
misappropriate and convert Plaintiff's fax paper and
toner, require Plaintiff to sort through faxes to separate
legitimate fax communications from junk fax advertisements
and to discard the latter.
(Rec. Doc. 1 at p. 5). Additionally, Casso claims to have
“suffered an injury in that it has also been deprived
of its right, created by Congress, to receive the required
opt-out notice disclosures on facsimile advertisements
governed by the TCPA.” (Id. at p. 6). Casso,
on behalf of itself and members of the purported class, seeks
the issuance of a permanent injunction, as well as damages in
the amount of $500 for each violation of the TCPA by
Defendant, and trebled statutory damages for violations
Defendant committed “willfully or knowingly.”
(Id. at pp. 10-11).
31, 2017, Spectrum filed the instant Motion to Dismiss for
Lack of Subject Matter Jurisdiction, pursuant to Federal Rule
of Civil Procedure 12(b)(1) and Spokeo, Inc. v.
Robins, 136 S.Ct. 1540 (2016), alleging that the Court
lacks subject matter jurisdiction because Casso lacks
standing to sue. (Rec. Doc. 13-1 at p. 11). Specifically,
Spectrum contends that Casso's claim involves “a
strictly statutory violation (the alleged failure to include
a complaint opt-out notice), not a concrete injury sufficient
to satisfy Article III standing requirements.”
(Id. at p. 2). Spectrum argues that, in addition to
failing to allege a sufficient injury in fact, Casso has also
failed to show that the injury is traceable to the alleged
TCPA violation. (Id. at p. 15). Spectrum further
contends that the “safe-harbor exception” applies
because the parties had an “established business
relationship (“EBR”).” (See Id. at
p. 17). Moreover, Spectrum moves for dismissal because it
claims it sufficiently complied with the opt-out notice
requirements by including the following language on the
referenced faxes: “To unsubscribe please call us at
800.370.6231 or fax this special back to us with your fax
number at 800.901.5518.” (Id. at p. 14).
opposition, Casso contends that (1) the EBR defense fails as
a matter of law because Casso has “never done any
business with, voluntarily communicated with, or in any way
asked to receive correspondence of any type from
Spectrum;” and (2) even if the EBR defense applies,
Spectrum's unsolicited facsimile advertisements do not
comply with the TCPA's requirements for a valid opt-out
notice. (See Rec. Doc. 20 at pp. 2-3). Further,
Casso asserts that substantial compliance with the opt-out
requirements is inadequate and not a defense to a violation
of the TCPA. (Id. at p. 8). Next, Casso asserts that
both of its claims-that Spectrum's junk fax campaign
violates the TCPA because the faxes are unsolicited
and fails to contain the statutorily-mandated
opt-out language-confer Article III standing. (Id.
at p. 4). Casso states that Paragraph 16 of its Complaint
identifies the actual, concrete harm Casso suffered by being
a target of Spectrum's junk fax campaign. (Id.
at p. 11). Moreover, Casso argues that “courts have
found, in the wake of Spokeo, that receipt of
unsolicited fax advertisements satisfies Article III standing
under the TCPA.” (Id. at p. 13).
reply, Spectrum reiterates the applicability of the EBR
safe-harbor defense and that substantial compliance with the
opt-out requirements is sufficient. (Rec. Doc. 26 at p. 2).
Spectrum claims the parties had an established business
relationship based on prior business dealings between
Spectrum and OncologyRX, LLC, a company formerly owned by
Mike Casso (also the owner of Casso's Wellness Store &
Gym, LLC). (Id. at p. 3). Spectrum argues that this
relationship applies to Casso's Wellness Store & Gym, LLC
because both companies were owned by Mike Casso and Mike
Casso chose to utilize the same fax number for his subsequent
company. (Id.) Moreover, Spectrum argues that the
language included on its faxes “conveys the essence of
the required information” and that at least one court
has deemed substantial compliance satisfactory as a defense.
(Id. at pp. 4-5). Spectrum asserts that the
applicability of the EBR defense strips Casso of a concrete