Arcare v. Qiagen North American Holdings, Inc.

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.November 23, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35852059v.1 SEYFARTH SHAW LLP Robert M. Milligan (SBN 217348) rmilligan@seyfarth.com Joseph A. Escarez (SBN 266644) jescarez@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendant QIAGEN NORTH AMERICAN HOLDINGS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARCARE d/b/a PARKIN DRUG STORE, on behalf of itself and all others similarly situated, Plaintiff, v. QIAGEN NORTH AMERICAN HOLDINGS, INC., Defendant. Case No. 2:16-cv-7638-PA-AS NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS [Memorandum of Points and Authorities and [Proposed] Order filed concurrently] Date: January 9, 2017 Time: 1:30 p.m. Judge: Hon. Percy Anderson Location: 350 W. 1st Street Courtroom 9A Los Angeles, California 90012 Date action filed: October 13, 2016 Case 2:16-cv-07638-PA-AS Document 14 Filed 11/23/16 Page 1 of 3 Page ID #:49 2 NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35852059v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 9, 2017, at 1:30 p.m. or as soon thereafter as the matter may be heard by the Honorable Percy Anderson, in Courtroom 9A of the above-entitled court, located at 350 W. 1st Street, Los Angeles, CA 90012, defendant QIAGEN North American Holdings, Inc. (“Qiagen”) will and hereby does move to dismiss and to strike the First Amended Complaint of plaintiff ARcare d/b/a Parkin Drug Store (“Plaintiff”). QIAGEN brings this Motion pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(f) on the following grounds: First, the Complaint should be dismissed in its entirety because Plaintiff lacks Article III standing. Plaintiff alleges only a technical statutory violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) combined with, at most, de minimis injury that fails to rise to the level of actual, concrete injury-in-fact. Even if Plaintiff has alleged a concrete injury, that injury is not traceable to QIAGEN’s alleged violations of the statute. Second, Plaintiff fails to state a claim under the TCPA. The faxes allegedly sent by QIAGEN and attached to the Complaint are not “advertisements” prohibited by the TCPA, but rather “informational,” “educational” and “transactional” communications not covered by the statute. Third, Plaintiff’s conclusory and bare allegations are also insufficient to state a claim for treble damages under the TCPA, and should be dismissed or stricken. Finally, QIAGEN moves pursuant to Federal Rules of Civil Procedure 12(f) for an order striking Plaintiff’s class allegations because the proposed class definition contemplates an impermissible fail-safe class. The Motion is based upon this Notice, the concurrently-filed Memorandum of Points and Authorities, the Court’s record in this matter and the arguments of counsel. This Motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on November 14, 2016. Case 2:16-cv-07638-PA-AS Document 14 Filed 11/23/16 Page 2 of 3 Page ID #:50 3 NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35852059v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: November 23, 2016 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ Joseph A. Escarez Robert M. Milligan Joseph A. Escarez Attorneys for Defendant QIAGEN NORTH AMERICAN HOLDINGS, INC. Case 2:16-cv-07638-PA-AS Document 14 Filed 11/23/16 Page 3 of 3 Page ID #:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 SEYFARTH SHAW LLP Robert M. Milligan (SBN 217348) rmilligan@seyfarth.com Joseph A. Escarez (SBN 266644) jescarez@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendant QIAGEN NORTH AMERICAN HOLDINGS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARCARE d/b/a PARKIN DRUG STORE, on behalf of itself and all others similarly situated, Plaintiff, v. QIAGEN NORTH AMERICAN HOLDINGS, INC., Defendant. Case No. 2:16-cv-7638-PA-AS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS [Notice of Motion and Motion and [Proposed] Order filed concurrently] Date: January 9, 2017 Time: 1:30 p.m. Judge: Hon. Percy Anderson Location: 312 N. Spring Street Courtroom 15 Los Angeles, California 90012 Date action filed: October 13, 2016 Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 1 of 27 Page ID #:52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................... 1 II. ALLEGATIONS OF THE COMPLAINT ................................................................ 1 III. ARGUMENT ............................................................................................................. 2 A. The Complaint Should Be Dismissed Pursuant To Rule 12(b)(1). ................. 2 1. Plaintiff Fails To Allege That It Suffered Any Concrete And Particularized Injury And Therefore Lacks Article III Standing. ......... 2 2. Plaintiff Fails To Allege Any Injury-In-Fact Traceable To The Challenged Conduct Of The Defendant. ............................................... 7 3. Plaintiff Cannot Allege That He Or Any Of The Putative Class Members Suffered A Concrete Injury Resulting From Defective Opt- Out Notices. .......................................................................................... 9 B. Plaintiff Fails To State A Claim For Violation of the TCPA. ...................... 10 1. Legal Standard .................................................................................... 10 2. The Faxes Are Not Advertisements And Therefore Not Prohibited The TCPA. .......................................................................................... 10 i. The TCPA’s Fax Provision Only Applies To Advertisements. 10 ii. The Faxes Here Are Not Advertisements Under The TCPA. .. 11 3. Plaintiff Fails To State A Claim For Treble Damages. ...................... 16 C. The Class Allegations Should Be Stricken Because Plaintiff Improperly Alleges a “Fail-Safe” Class. .......................................................................... 17 IV. CONCLUSION ........................................................................................................ 19 Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 2 of 27 Page ID #:53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 TABLE OF AUTHORITIES Page(s) Federal Cases Adamcik v. Credit Control Servs., Inc., No. A-10-CA-399-SS, 2011 WL 6793976 (W.D. Tex. Dec. 19, 2011) ....................... 16 Advanced Acupuncture Clinic, Inc. v. Allstate Ins. Co., Civ. Action No. 07-4925(JAP), 2008 WL 4056244 (D.N.J. Aug. 26, 2008) ............................................................................................................................. 17 Alleman v. Yellowbook, No. 12-CV-1300-DRH-PMF, 2013 WL 4782217 (S.D. Ill. Sept. 6, 2013) ................. 12 Ameriguard, Inc. v. Univ. of Kan. Med. Ctr. Research Inst., Inc., 222 F. App’x 530 (8th Cir. 2007) ........................................................................... 10, 14 Ameriguard, Inc. v. Univ. of Kansas Med. Ctr. Research Inst., Inc., No. 06-0369-CV-W-ODS, 2006 WL 1766812 (W.D. Mo. June 23, 2006), aff’d, 222 F. App’x 530 (8th Cir. 2007) ................................................................. 11, 14 Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) ........................................................................................................ 3 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ..................................... 10, 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ..................................... 10, 16 Breidenbach v. Experian, No. 3:12-CV-1548-GPC-BLM, 2013 WL 1010565 (S.D. Cal. Mar. 13, 2013) ............................................................................................................................. 16 Ewing v. SQM US, Inc., No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494 (S.D. Cal. Sept. 29, 2016) (J. Bencivengo) ................................................................................................. 6, 8 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) rev’d on other grounds, 510 U.S. 517 (1994) ............................................................................................................................ 17 Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 3 of 27 Page ID #:54 iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ........................................................................................................ 3 G.M. Sign, Inc. v. Franklin Bank, S.S.B., No. 06 C 949, 2007 WL 4365359 (N.D. Ill. Dec. 13, 2007) ............................ 19 Gen. Tel. Co. v. Falcon, 457 U.S. 147 (1982) ...................................................................................................... 17 Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979) .......................................................................................................... 3 Grind Lap Servs., Inc. v. UBM LLC, No. 14 C 6448, 2015 WL 6955484 (N.D. Ill. Nov. 10, 2015) ............................... 11, 12 Groshek v. Time Warner Cable, Inc., No. 15-C-157, 2015 WL 4620013 (E.D. Wis. July 31, 2015) (J. Randa) ...................... 7 Gubala v. Time Warner Cable, Inc., Case No. 15-cv-1078, 2016 WL 3390415 (E.D. Wis. June 17, 2016) (J. Pepper) ............................................................................................................................ 7 Hancock v. Urban Outfitters, Inc., No. 14-7047, 2016 WL 3996710 (D.C. Cir. July 26, 2016) ........................................... 6 Hernandez v. Path, Inc., No. 12-CV-01515-YGR, 2012 WL 5194120 (N.D. Cal. Oct. 19, 2012) (J. Rogers) ............................................................................................................................ 5 Holmes v. Back Doctors, Ltd., 695 F. Supp. 2d 843 (S.D. Ill. 2010)............................................................................. 13 Ingraham v. Wright, 430 U.S. 651 (1977) ........................................................................................................ 5 Jamison v. Bank of America, N.A., No. 2:16-CV-00422-KJM-AC, 2016 WL 3653456 (E.D. Cal. July 7, 2016) (J. Mueller) ........................................................................................................... 7 Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir. 1975) ........................................................................................ 17 Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 4 of 27 Page ID #:55 iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LaCourt v. Specific Media, Inc., No. SACV 10-1256-GW(JCGx), 2011 WL 1661532 (C.D. Cal. Apr. 28, 2011) (J. Wu.) ................................................................................................................. 5 Lindsay Transmission, LLC v. Office Depot, Inc., No. 4:12-CV-221 (CEJ), 2013 WL 275568 (E.D. Mo. Jan. 24, 2013) ........................ 18 Lipstein v. UnitedHealth Grp., 296 F.R.D. 279 (D.N.J. 2013) ....................................................................................... 18 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................... 3, 8 McCollough v. Smarte Carte, Inc., No. 16 C 03777, 2016 WL 4077108 (N.D. Ill. Aug. 1, 2016) ....................................... 7 McNamara v. City of Chicago, 138 F.3d 1219 (7th Cir. 1998) ........................................................................................ 8 N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App’x 640 (9th Cir. 2012) ........................................................................... 11, 12 In re Old Kent Mortg. Co. Yield Spread Premium Litig., 191 F.R.D. 155 (D. Minn. 2000) .................................................................................. 18 P&S Printing LLC v. Tubelite, Inc., No. 3:14-CV-1441 VAB, 2015 WL 4425793 (D. Conn. July 17, 2015) ..................... 14 Phillips Randolph Enterprises, L.L.C. v. Adler-Weiner Research Chicago, Inc., 526 F. Supp. 2d 851 (N.D. Ill. 2007) ............................................................................ 14 Physicians HealthSource, Inc. v. MultiPlan Servs., Corp., No. CIV.A. 12-11693-GAO, 2013 WL 5299134 (D. Mass. Sept. 18, 2013) ............................................................................................................................. 12 Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) ............................................................................... 18 Raines v. Byrd, 521 U.S. 811 (1997) .................................................................................................... 3, 9 Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 5 of 27 Page ID #:56 v MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Romero v. Dep’t Stores Nat’l Bank, No. 15-CV-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016) (J. Bencivengo) ........................................................................................................... 6, 8 Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 2014 WL 6775501 (N.D. Ohio Dec. 2, 2014), aff’d, 788 F.3d 218 (6th Cir. 2015) ................................................................................................................ 14, 15 Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218 (6th Cir. 2015) .................................................................................. 11, 14 Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., No. 14-cv-00583-JGC, ECF Nos. 19, 20 (N.D. Ohio 2014) ........................................ 14 Sartin v. EKF Diagnostics, Inc., No. CV 16-1816, 2016 WL 3598297 (E.D. La. July 5, 2016) (J. Vance) ...................... 6 Sauter v. CVS Pharmacy, Inc., No. 2:13-cv-846, 2014 WL 1814076 (S.D. Ohio May 7, 2014) ............................ 17, 19 Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007) .......................................................................................... 5 Smith v. Aitima Med. Equip., Inc., No. EDCV1600339ABDTBX, 2016 WL 4618780 (C.D. Cal. July 29, 2016) (J. Birotte) ............................................................................................................. 6 Smith v. The Ohio State Univ., Case No. 15-cv-3030, 2016 WL 3182675 (S.D. Ohio June 8, 2016) (J. Smith) .............................................................................................................................. 7 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ........................................................................................ 3, 4, 7, 9 Stubbs v. McDonald’s Corp., 224 F.R.D. 668 (D. Kan. 2004) .................................................................................... 18 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ........................................................................................................ 3 Supply Pro Sorbents, LLC v. Ringcentral, Inc., No. C 16-02113 JSW, 2016 WL 5870111 (N.D. Cal. Oct. 7, 2016) (J. White) ............................................................................................................................. 6 Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 6 of 27 Page ID #:57 vi MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Susinno v. Work Out World, Inc. (D.N.J. 2016)................................................................................................................... 6 Thompson v. Merck & Co., No. C.A. 01-1004, 2004 WL 62710 (E.D. Pa. Jan. 6, 2004) ........................................ 18 Tietsworth v. Sears, 720 F. Supp. 2d 1123 (N.D. Cal. 2010) ........................................................................ 17 Yarger v. ING Bank, fsb, 285 F.R.D. 308, 317 (D. Del. 2012) ...................................................................... 18 State Cases Manufacturers Auto Leasing, Inc. v. Autoflex Leasing, Inc., 139 S.W.3d 342 (Tex. Ct. App. 2004) .......................................................................... 16 Federal Statutes Fair Credit Reporting Act, 15 U.S.C. § 1601, et seq.. ..................................................... 3, 7 Telephone Consumer Protection Act, 47 U.S.C. § 227 .............................................. passim State Statutes California Business & Professions Code § 17538.43 .......................................................... 1 Rules Fed. R. Civ. P. 8(a)(2) ........................................................................................................ 10 Fed. R. Civ. P. 12(b)(1) .................................................................................................... 1, 2 Fed. R. Civ. P. 12(b)(6) ...................................................................................................... 10 Rule 12(f) ........................................................................................................................... 17 Regulations 71 Fed.Reg. 25,967-01 ....................................................................................................... 12 Other Authorities Morgovsky v. AdBrite, Inc., No. C 10-05143 ............................................................................................................. 16 Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 7 of 27 Page ID #:58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 I. INTRODUCTION Defendant QIAGEN North American Holdings, Inc. (“QIAGEN”) respectfully submits this memorandum of points and authorities in support of its Motion to Dismiss the Complaint of plaintiff ARcare d/b/a Parkin Drug Store (“Plaintiff”) and to strike the class allegations contained therein. Plaintiff asserts claims against QIAGEN under the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), as amended by the Junk Fax Prevention Act of 2005 (“JFPA”), for faxes it allegedly received from QIAGEN. However, each of Plaintiff’s claims fail as a matter of law.1 First, the Complaint should be dismissed in its entirety under Federal Rule of Civil Procedure 12(b)(1) because Plaintiff lacks Article III standing. Plaintiff alleges only technical, statutory violations of the TCPA, and any purported injury suffered as a result is de minimis and fails to rise to the level of actual, concrete injury-in-fact. Moreover, any alleged injury suffered by Plaintiff is not traceable to QIAGEN’s alleged violations of the statute. Second, Plaintiff fails to state a claim for violation of the TCPA. The faxes allegedly sent by QIAGEN are not “advertisements.” Rather, the faxes are “informational” and “educational” communications not prohibited by the TCPA. Third, Plaintiff’s conclusory and bare allegations are also insufficient to state a claim for treble damages under the TCPA, and should be dismissed or stricken. Finally, Plaintiff’s class allegations should be stricken because the proposed class definition contemplates an impermissible fail-safe class. II. ALLEGATIONS OF THE COMPLAINT Plaintiff is an Arkansas non-profit corporation located in Augusta, Arkansas. (Compl., ¶ 10.) QIAGEN is a California corporation and its principal place of business is in Germantown, Maryland. (Id., ¶ 11.) 1 Plaintiff voluntarily dismissed its claim under the California Business & Professions Code § 17538.43. (Doc. No. 12.) Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 8 of 27 Page ID #:59 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges that QIAGEN sent an unsolicited fax advertisement to Plaintiff on May 31, 2016, and that it has received multiple fax advertisements from QIAGEN similar to Exhibit A attached to the Complaint. (Id., ¶¶12-14 & Ex. A.) Plaintiff further alleges that it received five additional faxes from QIAGEN on July 27, 2016. (Id. ¶ 15 & Ex. B.) Plaintiff claims that QIAGEN “did not have Plaintiff’s prior express invitation or permission to send advertisements to Plaintiff’s fax machine” and that the faxes “do not contain opt-out notices that comply with the requirements of the TCPA.” (Id., ¶ 16-17.) Plaintiff claims that these faxes caused Plaintiff to “lose paper, toner, and ink” and cost Plaintiff “time that otherwise would have been spent on [its] business activities.” (Id., ¶¶ 33, 42.) Based on these allegations, Plaintiff asserts claims for negligent and/or willful violations of the TCPA. (Id., ¶¶ 26-43.) Plaintiff purports to assert these claims on behalf of itself and a putative class defined as: All persons and entities who held telephone numbers that received one or more telephone facsimile transmissions that (1) promoted the commercial availability or quality of property, goods, or services offered by “Qiagen,” and (2) did not (i) provide a toll-free telephone number and facsimile number where the fax recipient may make a request to the sender not to send any future ads nor (ii) inform the fax recipient that the sender’s failure to comply within 30 days of such a request is unlawful. (Id., ¶ 18) (emphasis added). Plaintiff seeks actual damages, statutory damages, injunctive and declaratory relief, and attorneys’ fees and costs. (Id., Prayer for Relief.) III. ARGUMENT A. The Complaint Should Be Dismissed Pursuant To Rule 12(b)(1). 1. Plaintiff Fails To Allege That It Suffered Any Concrete And Particularized Injury And Therefore Lacks Article III Standing. Plaintiff lacks Article III standing because it alleges only a technical statutory violation combined with, at most, de minimis injury that fails to rise to the level of actual, concrete injury-in-fact. To establish standing (and thus federal jurisdiction) under Article III, a plaintiff bears the burden of showing that it: (1) . . . has suffered an “injury in fact” that is (a) concrete and Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 9 of 27 Page ID #:60 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000). The injury-in-fact requirement is the “irreducible constitutional minimum” for standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Because the injury-in- fact requirement “is a hard floor of Article III jurisdiction,” it “cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) citing Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979). Moreover, the Supreme Court has “always insisted on strict compliance with this jurisdictional standing requirement.” Id. at 819. As the Supreme Court has recently cautioned, “[i]n an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 146 (2011). To have standing, a plaintiff must do more than allege a mere statutory violation; instead, a plaintiff must show that the alleged violation caused “concrete and particularized” harm. Friends of the Earth, 528 U.S. at 180; Lujan, 504 U.S. at 560. In Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016), the plaintiff alleged that the defendant violated the federal Fair Credit Reporting Act (“FCRA”) by furnishing a consumer report that contained inaccurate information about him, including that he was married, had children, was in his 50s, had a job, was affluent, and held a graduate degree. See id. at 1546. The district court dismissed for lack of standing, but the Ninth Circuit reversed, holding that the plaintiff had suffered an injury in fact because he alleged a violation of his statutory rights and because his claim was individualized. See id. at 1544. Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 10 of 27 Page ID #:61 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On review, the United States Supreme Court vacated the decision. See id. at 1545. The Supreme Court held that the Ninth Circuit’s analysis was incomplete because it only considered the first element of injury in fact - that the injury affected the plaintiff in a “personal and individual way” - and failed to additionally analyze whether there was a concrete injury. Id. at 1545, 1548 (internal citations omitted). Because “Article III standing requires a concrete injury even in the context of a statutory violation,” the Supreme Court ruled that a plaintiff “cannot satisfy the demands of Article III by alleging a bare procedural violation” because “a violation of one of the FCRA’s procedural requirements may result in no harm.” Id. at 1550. In support of its ruling, the Supreme Court stated that a “concrete injury” must be “‘de facto; that is, it must actually exist. When we have used the adjective ‘concrete,’ we have meant to convey the usual meaning of the term - ‘real,’ and not ‘abstract.’” Id. at 1548. Because the Ninth Circuit did not consider “concrete injury,” the matter was remanded. Id. at 1549. Spokeo makes clear that a “bare procedural violation, divorced from any concrete harm” is insufficient to create Article III standing. Id. Thus, “[a] violation of one of the FCRA’s procedural requirements may result in no harm,” such as where “even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate.” Id. at 1550. Here, Plaintiff does not plead a cognizable injury in the Complaint separate and apart from an alleged naked statutory TCPA violation. In its complaint, Plaintiff recites vague and hypothetical possibilities if someone receives an unsolicited fax and does not contain an allegation that demonstrates a concrete or real injury suffered by Plaintiff or, for that matter, any member of the class. Compl., ¶ 3 (“Junk faxes disrupt recipients’ peace, drain recipients’ paper, ink, and toner, and cause recipients tangible damages. . . .”). Plaintiff also makes vague, conclusory allegations regarding lost ink, toner, paper and time (Compl., ¶ 33). But these purported damages constitute de minimis injuries that are insufficient to rise to the level of a cognizable injury. See Skaff v. Meridien N. Am. Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 11 of 27 Page ID #:62 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Beverly Hills, LLC, 506 F.3d 832, 839-40 (9th Cir. 2007) (finding de minimis injury alleged in complaint was “too trifling of an injury to support constitutional standing.”). This principle is rooted in the “ancient maxims of de minimis non curat lex and lex non curat de minimis,” which “frequently has been followed by the Supreme Court” and “teach[es] that the law cares not about trifles.” Id. at 839 (citations omitted). Particularly analogous here is Hernandez v. Path, Inc., No. 12-CV-01515-YGR, 2012 WL 5194120 (N.D. Cal. Oct. 19, 2012) (J. Rogers). There, the plaintiff alleged that after downloading the defendant’s cell phone application, the application installed tracking software that surreptitiously accessed the plaintiff’s personally identifiable information, uploaded it to defendant’s servers, and shared the information with defendant’s advertisers. Id. at *1. The plaintiff sought damages under various state and federal statutes, including for harm for “diminished mobile device resources” that he claimed resulted in a depletion of “two to three seconds of battery capacity.” Id. at *2. The court found this alleged harm was insufficient for Article III standing because “[t]he specific harm caused by diminished resources of which Plaintiff complains is de minim[i]s.” Id.; see also LaCourt v. Specific Media, Inc., No. SACV 10-1256- GW(JCGx), 2011 WL 1661532, at *5 (C.D. Cal. Apr. 28, 2011) (J. Wu.) (dismissing complaint for failure to identify a concrete injury-in-fact from defendant’s alleged forced overriding of preferences on plaintiffs’ computers and stating “[i]f the loss of the ability to delete cookies counts as harm to Plaintiffs’ computers, then maybe Plaintiffs have alleged some de minimis injury, but probably not one that would give rise to Article III standing.”). At a certain point, an alleged injury is so de minimis as to constitute no injury at all for Constitutional purposes. Cf. Ingraham v. Wright, 430 U.S. 651, 674 (1977) (“There is, of course a de minimis level of imposition with which the Constitution is not concerned.”). Otherwise, the notion of an “injury-in-fact” loses all meaning. Here, as in Skaff and Hernandez, such a line would be crossed. Even assuming the six faxes that Plaintiff received were unsolicited advertisements - which they are not (see infra, § B.2.) Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 12 of 27 Page ID #:63 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - the loss of paper, ink, toner and time based on the receipt of six faxes is “too trifling of an injury to support constitutional standing.” Skaff, 506 F.3d at 839-40. Accordingly, Plaintiff fails to allege any concrete injury, and Plaintiff’s lawsuit relies solely on a statutory violation for standing. Numerous other post-Spokeo decisions have rejected TCPA lawsuits that rely solely on statutory violations for standing. See Supply Pro Sorbents, LLC v. Ringcentral, Inc., No. C 16-02113 JSW, 2016 WL 5870111, at *3 (N.D. Cal. Oct. 7, 2016) (J. White) (dismissing TCPA junk fax claims despite plaintiff’s allegations that junk fax recipients lose the use of their fax machines, paper, and ink toner, as well as the loss of time dealing with junk faxes, which interrupt the recipient’s privacy); Smith v. Aitima Med. Equip., Inc., No. EDCV1600339ABDTBX, 2016 WL 4618780, at *4 (C.D. Cal. July 29, 2016) (J. Birotte) (dismissing TCPA action with prejudice because “[a]ny depletion of Plaintiff's battery, or aggravation and nuisance, resulting from only one call, is a de minimis injury . . . not sufficient to confer standing.”); Sartin v. EKF Diagnostics, Inc., No. CV 16-1816, 2016 WL 3598297, at *3 (E.D. La. July 5, 2016) (J. Vance) (dismissing TCPA fax case and finding “Congress may not erase the requirements of Article III by legislative fiat” and dismissing claims where plaintiff “fails to plead facts demonstrating how [a] statutory violation caused concrete harm”); Romero v. Dep’t Stores Nat’l Bank, No. 15-CV-193-CAB-MDD, 2016 WL 4184099, at *6 (S.D. Cal. Aug. 5, 2016) (J. Bencivengo) (granting motion to dismiss TCPA claims because “Plaintiff has not and cannot demonstrate that any one of Defendants’ over 290 alleged violations of the TCPA, considered in isolation, actually caused her a concrete harm”); Ewing v. SQM US, Inc., No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494, at *2-3 (S.D. Cal. Sept. 29, 2016) (J. Bencivengo) (dismissing TCPA action with prejudice and rejecting plaintiff’s claim that he “‘sustained injury when he had to waste time answering and addressing the robo-call,’ and that he was injured insofar as the call depleted his phone’s battery, requiring him to recharge it.”); Susinno v. Work Out World, Inc., (D.N.J. 2016) (purportedly aggravating and annoying calls were not sufficient to constitute a concrete injury); see also Hancock Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 13 of 27 Page ID #:64 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Urban Outfitters, Inc., No. 14-7047, 2016 WL 3996710, at *3 (D.C. Cir. July 26, 2016) (rejecting proposition that plaintiff could establish standing based on a statutory violation in the absence of a “concrete injury in fact”); Jamison v. Bank of America, N.A., No. 2:16-CV-00422-KJM-AC, 2016 WL 3653456, at *4-5 (E.D. Cal. July 7, 2016) (J. Mueller) (rejecting assertion that concrete harm can be inherently established based on procedural violations involving statutorily defective forms and dismissing plaintiff’s claim for lack of standing); Groshek v. Time Warner Cable, Inc., No. 15-C-157, 2015 WL 4620013, at *3-4 (E.D. Wis. July 31, 2015) (J. Randa) (dismissing plaintiff’s case because he failed to allege concrete harm resulting from defendant’s alleged FCRA violation); Gubala v. Time Warner Cable, Inc., Case No. 15-cv-1078, 2016 WL 3390415, at *4 (E.D. Wis. June 17, 2016) (J. Pepper) (ruling that statutory violation does not, in and of itself, demonstrate concrete harm); Smith v. The Ohio State Univ., Case No. 15-cv- 3030, 2016 WL 3182675, at *3-4 (S.D. Ohio June 8, 2016) (J. Smith) (no concrete injury based on allegation that defendant violated the FCRA by including extraneous information in disclosure and authorization); McCollough v. Smarte Carte, Inc., No. 16 C 03777, 2016 WL 4077108, at *2-5 (N.D. Ill. Aug. 1, 2016) (granting motion to dismiss when plaintiff merely alleged a technical violation of a biometric information privacy act and did not allege any harm resulting from the violation). Plaintiff has failed to demonstrate that it has standing to invoke the limited jurisdiction of this Court. “[W]ithout some concrete interest that is affected by” the violation, an alleged statutory violation confers no standing. Spokeo, 136 S. Ct. at 1548- 49. Because Plaintiff does not plead a cognizable injury in the Complaint separate and apart from an alleged naked statutory TCPA violation, its Complaint should be dismissed for lack of Article III standing. 2. Plaintiff Fails To Allege Any Injury-In-Fact Traceable To The Challenged Conduct Of The Defendant. Even if Plaintiff could establish it suffered some kind of injury-in-fact, it cannot show that its injury-in-fact is traceable or related to QIAGEN’s alleged violations of the Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 14 of 27 Page ID #:65 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TCPA. The plain language of the TCPA makes clear that the purported violation is a result of either (1) failing to obtain prior express invitation before sending faxes; or (2) failing to include an appropriate opt-out notice in faxes sent -- not the faxes themselves. See 47 U.S.C. § 227(a)(5) (defining “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise”); id., § 227(b)(1)(C) (prohibiting the transmission of unsolicited advertisements to fax machines; id., § 227(b)(2)(D) (setting forth the opt-out notice requirements for fax advertisements). Thus, in order to establish Article III standing, Plaintiff must show its purported damages are fairly traceable to the wrongful conduct of the QIAGEN allegedly failing to obtain prior express invitation to send the faxes and failing to include the opt-out notice in the faxes it sent. See Lujan, 504 U.S. at 560. Here, Plaintiff cannot connect its claimed loss of “paper, toner, and ink consumed in the printing of [QIAGEN’s] faxes” and “time that otherwise would have been spent on Plaintiff’s . . . business activities” with QIAGEN’s alleged failure to obtain prior express invitation or include an appropriate opt-out notice. While these alleged faxes may have caused a loss of ink, toner, paper and time, those injuries are unrelated to QIAGEN’s alleged violation of the TCPA because Plaintiff would have been no better off had QIAGEN obtained Plaintiff’s prior invitation and included a TCPA-compliant opt-out notice. In other words, if QIAGEN fully complied with the TCPA, Plaintiff would have lost the same amount of ink, toner, paper and time. “A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.” Romero, 2016 WL 4184099, at *6 (quoting McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998)); see also Ewing, 2016 WL 5846494, at *3 (dismissing TCPA complaint stating “Plaintiff does not, and cannot, allege that Defendants’ use of an [automated telephone dialing system] to dial his Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 15 of 27 Page ID #:66 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 number caused him to incur a charge that he would not have incurred had Defendants manually dialed his number, which would not have violated the TCPA” and plaintiff “would have been no better off had Defendants dialed his number manually (in which case they would have refrained from violating the TCPA). He would have had to expend the same amount of time answering and addressing Defendants’ manually dialed telephone call and would have incurred the same amount of battery depletion.”). To use the language from Spokeo, Plaintiff's alleged concrete harm is divorced from QIAGEN’s alleged violation of the TCPA. See Spokeo, 136 S. Ct. at 1549 (holding that “a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III”). Accordingly, Plaintiff has not and cannot satisfy the injury-in-fact requirement of Article III. 3. Plaintiff Cannot Allege That He Or Any Of The Putative Class Members Suffered A Concrete Injury Resulting From Defective Opt- Out Notices. The putative class definition is limited to those individuals and entities who received faxes from QIAGEN that were (1) advertisements that (2) did not comply with the TCPA’s opt-out notice requirements. (Compl., ¶ 18.) But as set forth above, nowhere in the Complaint does Plaintiff allege what, if any, injury it or any of the putative class members suffered as a result of receiving faxes with defective opt-out notices. Indeed, it is inconceivable how the alleged failure to include an appropriate opt- out notice would result in the loss of ink, toner, paper, or time, and Plaintiff fails to identify any other concrete harm suffered by Plaintiff or any putative class members. Under Spokeo, if the defendant’s actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a Plaintiff standing. See Spokeo, 136 S.Ct. at 1547-48 (“Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”) (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997). The mere sending of a fax advertisement without a TCPA-compliant opt-out Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 16 of 27 Page ID #:67 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 notice does not cause an injury to the recipient.2 That the TCPA allows private suits for such faxes does not somehow elevate this non-injury into a concrete injury sufficient to create Article III standing. B. Plaintiff Fails To State A Claim For Violation of the TCPA. 1. Legal Standard To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required, the complaint must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). The complaint must contain more than labels, conclusions, or a formulaic recitation of the elements of a cause of action, which means that the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. 2. The Faxes Are Not Advertisements And Therefore Not Prohibited The TCPA. i. The TCPA’s Fax Provision Only Applies To Advertisements. To prove a violation of the TCPA, plaintiff must establish that the defendant sent “to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C) (emphasis added). No TCPA liability can arise from the sending of a fax unless the fax is an “advertisement.” Id. The rules governing prior express invitation and notices on how to “opt-out” of receiving advertising faxes, relied upon by Plaintiff here, 2 Plaintiff does not and cannot allege that it was injured due to an inability to opt-out of receiving additional faxes. The faxes attached to the Complaint provide an email address to opt out. (Compl., Exs. A, B.) Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 17 of 27 Page ID #:68 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do not apply to non-advertising faxes. Id. As the Eighth Circuit has held, a plaintiff “fail[s] to state a claim upon which relief could be granted [where] the facsimile attached to the complaint [did] not constitute an ‘unsolicited advertisement’ pursuant to the TCPA.” Ameriguard, Inc. v. Univ. of Kan. Med. Ctr. Research Inst., Inc., 222 F. App’x 530, 531 (8th Cir. 2007); see also N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App’x 640, 643 (9th Cir. 2012) (affirming dismissal with prejudice because faxes “were not, overall, advertisements within the meaning of [the Junk Fax Prevention Act]”). The TCPA defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services . . . .” 47 U.S.C. § 227(a)(5) (emphasis added). “The critical issue is whether the fax advertises the ‘commercial availability’ of goods, services or property.” Ameriguard, Inc. v. Univ. of Kansas Med. Ctr. Research Inst., Inc., No. 06-0369-CV-W-ODS, 2006 WL 1766812, at *2 (W.D. Mo. June 23, 2006) (dismissing complaint), aff’d, 222 F. App’x 530 (8th Cir. 2007). The term “advertisement” requires that the material must unambiguously contain “commercial” components: “To be an ad, the fax must promote goods or services that are for sale, and the sender must have profit as an aim.” Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 223-24 (6th Cir. 2015) (affirming summary judgment because faxes were not “advertisements” under the TCPA); see Grind Lap Servs., Inc. v. UBM LLC, No. 14 C 6448, 2015 WL 6955484, at *3 (N.D. Ill. Nov. 10, 2015) (finding that “as a matter of law, the fax is not an unsolicited advertisement within the meaning of the TCPA” and “the five questions about plaintiff’s business included in the fax do not transform it into an unsolicited advertisement”). ii. The Faxes Here Are Not Advertisements Under The TCPA. Plaintiff’s Complaint asserts numerous times that “Defendant sent an unsolicited advertisement” and “Plaintiff has received multiple fax advertisements from Defendant similar to Exhibit A.” (Compl. ¶¶ 12, 14.) Yet, on the face of the faxes, it is clear that none is an advertisement. The faxes attached to the Complaint, which Plaintiff alleges are “exemplary of the junk faxes Defendant sends,” (id. ¶ 13) simply do not promote Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 18 of 27 Page ID #:69 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 goods or services that are for sale to the fax recipients. Rather, each fax is merely informational and educational. (Id., Exs. A & B.) No good or service is being advertised for sale in the faxes, and Plaintiff cannot allege otherwise. For example, the faxes at issue do not: (1) offer to sell QIAGEN’s products to the fax recipient (and it is not clear from the faxes what those products would be), (2) contain any prices offered for any products, or (3) contain any discounts or other promotions often seen in faxes determined to be “advertising.” See, e.g., Physicians HealthSource, Inc. v. MultiPlan Servs., Corp., No. CIV.A. 12-11693-GAO, 2013 WL 5299134, at *2 (D. Mass. Sept. 18, 2013) (dismissing complaint where “[b]ased on the four corners of the facsimile, there is no overt advertising by [defendant], nor is there any enticement that could be construed as a pretext to advertise commercial products or services”); Alleman v. Yellowbook, No. 12-CV-1300-DRH-PMF, 2013 WL 4782217, at *6 (S.D. Ill. Sept. 6, 2013) (dismissing with prejudice, finding that a call to verify that the listener received a phone directory was not an “unsolicited advertisement” as a “sale of goods or services is not advertised, promoted, contemplated, alluded to, or encouraged”); Grind Lap Servs., 2015 WL 6955484, at *3 (finding that “neither the questions nor the fax generally promote the commercial availability or quality of any goods or services;” the “instant fax includes a single reference to the name of the magazine, along with the company’s address,” which “occupies maybe an eighth of the page”). The majority of Exhibit A informs the recipient of the American Academy of Pediatrics’ Red Book’s indications regarding interferon gamma release assays (IGRAs), and offers access to a complimentary webinar to learn more and complete a short survey. (Id., Ex. A.) While Exhibit A states “save time for both you and your patients by ordering the most accurate test for TB infection, QuantiFERON® - TB Gold, from your trusted laboratory partner,” this statement constitutes only a small portion of the fax and is insufficient to transform the educational and informational faxes into advertisements. See N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App'x 640, 642 (9th Cir. 2012) (observing that “the amount of space devoted to advertising versus the amount of space Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 19 of 27 Page ID #:70 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 used for information” is relevant in determining whether incidental advertising transforms a legitimate fax into an unsolicited advertisement) (citing 71 Fed.Reg. 25,967- 01). Here, the statement that Plaintiff complains about is de minimis in relation to full page informational fax. See, e.g., N.B. Indus., 465 F. App’x at 643 (“the advertisements constituted such a small portion of the faxes as to be incidental to the award application. Such de minimis advertising is insufficient to transform faxes that were largely permissible into prohibited communications”); Holmes v. Back Doctors, Ltd., 695 F. Supp. 2d 843, 851 (S.D. Ill. 2010) (holding that a fax, one-seventh of which comprised advertising, did not violate TCPA). The faxes contained in Exhibit B are similarly educational and informational, and do not constitute advertisements under the TCPA. The first, second and fourth faxes in Exhibit B simply inform the recipient of current CDC Guidelines on Tuberculosis Testing and includes contact information for recipient to learn more about QuantiFERON. (Id., Ex. B at 15-16, 18.) The third and fifth faxes informs the recipient of updates to the Red Book from the American Academy of Pediatrics related to tuberculosis screenings, particularly IGRA’s, and offers complimentary access to the new edition of the Red Book. (Id., Ex. B at 17, 19.) Thus, Exhibit B plainly does not include any advertisements. Indeed, Plaintiff appears to concede this point, taking care to refrain from alleging that Exhibit B contains any advertisements. Compare Compl., ¶ 14 (“Upon information and belief, Plaintiff has received multiple fax advertisements from Defendant similar to Exhibit A”) with id., ¶ 15 (“On July 27, 2016, Plaintiff received an additional five faxes from Defendant. These have been attached as Exhibit B.”); see also id. ¶ 22 (alleging that common questions of law and fact include “The manner and method Defendant used to compile or obtain the list of fax numbers to which it sent Exhibit A and other fax advertisements”; the Complaint contains no similar allegation with respect to Exhibit B); ¶ 32, 41 (“Defendant knew or should have known (a) that Plaintiff had not given express invitation or permission for Defendant to fax advertisements about its Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 20 of 27 Page ID #:71 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 products; (b) that Defendant’s faxes did not contain a compliant opt-out notice; and (c) that Exhibit A is an advertisement”). Where it is evident on the face of the fax that it is not an advertisement, courts have dismissed TCPA claims, just like those at issue here, because the relevant provisions apply only to an “unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C); see, e.g., P&S Printing LLC v. Tubelite, Inc., No. 3:14-CV-1441 VAB, 2015 WL 4425793, at *5 (D. Conn. July 17, 2015) (holding that the “fax’s primary purpose, on its face, was to communicate information to current customers about a change in delivery schedule” and it “does not constitute an ‘advertisement’ as a matter of law, because it does not tend to propose a commercial transaction and does not appear on its face to have been sent based on a commercial pretext”). In Ameriguard, for example, the fax announced “a clinical drug trial and Defendant’s need for individuals willing to serve as test subjects.” Ameriguard, 2006 WL 1766812, at *2. The district court dismissed the complaint, as affirmed by the Eighth Circuit, because the fax did not advertise “the ‘commercial availability’ of goods, services or property.” Id.; 222 F. App’x at 531. Similarly, in Phillips Randolph Enterprises, L.L.C. v. Adler-Weiner Research Chicago, Inc., 526 F. Supp. 2d 851, 853 (N.D. Ill. 2007), the district court ruled that “[o]n its face, the fax does not promote a ‘commercially available service,’ but a research study.” While the plaintiff alleged that the defendants’ “products or services were advertised in the fax,” it identified only “research discussion” as the product or service, with “no additional allegations addressing whether defendants advertise any products or services at those discussions, or that defendants are in the business of advertising products or services in those discussions.” Id. The court accordingly dismissed the complaint. Id. Likewise, in this case, Plaintiff cannot allege that the educational and informational faxes serve as a pretext to sell Plaintiff any of QIAGEN’s products or services. Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 21 of 27 Page ID #:72 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Sixth Circuit’s Sandusky decision further confirms that the faxes here are not advertisements.3 788 F.3d at 222. In that case, a health care provider sued a pharmacy benefit manager, claiming two faxes the manager sent constituted unsolicited advertisements in violation of the TCPA. Id. The court held that the faxes were not advertisements because they did not solicit a purchase for a commercially available product. Id. Instead, they were merely informational, mentioned “items (medications) and services (Medco’s formulary),” and listed “drugs in a purely informational, non- pecuniary sense: to inform [the health provider plaintiff] what drugs its patients might prefer, based on Medco’s formulary-a paid service already rendered not to [the plaintiff] but to Medco’s clients.” Id. (emphasis added). Like the defendant in Sandusky, QIAGEN was not attempting to sell any products to Plaintiff through the faxes, but rather communicate educational and informational material on tuberculosis testing, including CDC Guidelines and the American Academy of Pediatrics’ recommendations on IGRAs such as QuantiFERON. (Compl. Exs. A & B.) The faxes demonstrate on their face that there is no product or service being advertised for sale to Plaintiff. (Id.) Any advertising elements contained in the Exhibits are incidental and insufficient to transform the educational and informational faxes into advertisements. Therefore, the TCPA does not apply, and Plaintiff cannot state a claim for violation of the TCPA. 3 Although Sandusky was decided on summary judgment, the court had no occasion to consider the issue on the pleadings because Medco did not file a motion to dismiss. Rather, Medco answered the complaint and then filed a motion for summary judgment the next day. See Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., No. 14-cv- 00583-JGC, ECF Nos. 19, 20 (N.D. Ohio 2014). In ruling for defendant Medco, the court found that the faxes did “not solicit the sale of anything,” and were thus not prohibited under the TCPA. Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 2014 WL 6775501, at *2 (N.D. Ohio Dec. 2, 2014), aff’d, 788 F.3d 218 (6th Cir. 2015). The court also noted that, in light of the nature of the faxes, the court trusted that the opinion would “serve as a warning to plaintiff and others who receive faxes of this sort, which serve a useful, and not a disruptive or illegal purpose not to file similar fruitless litigation in the future.” Id. at *5 n.1. Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 22 of 27 Page ID #:73 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Plaintiff Fails To State A Claim For Treble Damages. The Court should dismiss or strike Plaintiff’s conclusory demand for treble damages. Under the TCPA, a plaintiff may recover either the actual monetary loss sustained as a result of the violation of the statute or $500 per violation, whichever is greater. 47 U.S.C. § 227(b)(3)(B). If the court finds that the defendant willfully or knowingly violated either statute, “the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B).” 47 U.S.C. § 227(b)(3). Plaintiff seeks the award of treble damages alleging only general claims that statutory damages under the TCPA “may be trebled when the violation is willing or knowing.” (Compl., ¶ 5.) This bare allegation does not, and cannot, pass muster under Iqbal and Twombly, and Plaintiff’s request for treble damages should be stricken or dismissed for that reason alone. See Breidenbach v. Experian, No. 3:12-CV-1548-GPC- BLM, 2013 WL 1010565, at *7 (S.D. Cal. Mar. 13, 2013) (dismissing TCPA claim for failure to allege sufficient facts) (citations omitted). Furthermore, under the TCPA, in order for a violation to be considered willful, a defendant must have made the unsolicited communication knowing or having reason to know that such conduct was a violation of the TCPA. See, e.g., Adamcik v. Credit Control Servs., Inc., No. A-10-CA-399-SS, 2011 WL 6793976, at *9 (W.D. Tex. Dec. 19, 2011) (plaintiff must demonstrate the defendant was “more than negligent in its TCPA violation” and “knew or should have known it was violating the TCPA”); Manufacturers Auto Leasing, Inc. v. Autoflex Leasing, Inc., 139 S.W.3d 342, 346-47 (Tex. Ct. App. 2004) (stating that “[t]he TCPA is willfully or knowingly violated when the defendant knows of the TCPA, knows he does not have permission to send the fax . . . and sends it anyway”). Here, while Plaintiff alleges that “Defendant knew or should have known (a) that Plaintiff had not given express invitation or permission for Defendant to fax advertisements about its products; (b) that Defendant’s faxes did not contain a compliant opt-out notice; and (c) that Exhibit A is an advertisement,” Plaintiff alleges no Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 23 of 27 Page ID #:74 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facts that could support these conclusions. See, e.g., Iqbal, 129 S. Ct. at 1949-51 (allegations that defendants “willfully and maliciously agreed” to violate plaintiff's rights were “bare assertions” that “amount to nothing more than a ‘formulaic recitation of the elements' ” of claim and were insufficient to state any claim) (citation omitted); Morgovsky v. AdBrite, Inc., No. C 10-05143 SBA, 2012 WL 1595105, at *7 (N.D. Cal. May 4, 2012) (bare allegations that defendant “willfully” violated statute were insufficient to state a claim). Therefore, Plaintiff has not alleged any basis on which this court could award it treble damages and QIAGEN’s Motion should be granted in that respect. C. The Class Allegations Should Be Stricken Because Plaintiff Improperly Alleges a “Fail-Safe” Class. In the event Plaintiff’s Complaint is not dismissed in its entirety, the Court should strike the proposed class definition because it alleges an impermissible fail-safe class. The Federal Rules of Civil Procedure provide a mechanism for excising defective class allegations at the pleadings stage. Under Rule 12(f), the Court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12 (f). The Court is thus authorized “to strike class allegations prior to discovery if the complaint demonstrates that a class action cannot be maintained.” Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010). “Most courts recognize that a motion to strike class action allegations may properly be filed before plaintiffs have filed a motion for class certification.” Sauter v. CVS Pharmacy, Inc., No. 2:13-cv-846, 2014 WL 1814076, at *2 (S.D. Ohio May 7, 2014) (citing 1 McLaughlin on Class Actions § 3:4 (12th ed. 2015)); see also Advanced Acupuncture Clinic, Inc. v. Allstate Ins. Co., Civ. Action No. 07-4925(JAP), 2008 WL 4056244, at *7 (D.N.J. Aug. 26, 2008) (“A defendant may move to strike class allegations prior to discovery in rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 24 of 27 Page ID #:75 18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigating spurious issues by dispensing with those issues prior to trial....” Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) rev’d on other grounds, 510 U.S. 517 (1994) (citations and internal quotation marks omitted); see also Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir. 1975). “Sometimes the issues are plain enough from the pleadings to determine whether the interests of absent parties are fairly encompassed within the named plaintiff’s claim” or whether the action is inappropriate for class certification for other reasons. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982). In those instances, “[t]he court need not wait for a motion for class certification.” Stubbs v. McDonald’s Corp., 224 F.R.D. 668, 674 (D. Kan. 2004). Many courts have entertained and granted motions by defendants at the pleading stage to dispose of futile class allegations.4 In this case, the Complaint alleges an impermissible fail-safe class. A fail-safe class is “one in which whether a person qualifies as a member depends on whether the person has a valid claim.” Lipstein v. UnitedHealth Grp., 296 F.R.D. 279, 291 (D.N.J. 2013) (internal quotations and citations omitted). To “defin[e] a class to consist of solely those who have certainly suffered injury is forbidden.” Yarger v. ING Bank, fsb, 285 F.R.D. 308, 317 (D. Del. 2012). Plaintiff’s proposed class is a fail-safe class because it incorporates disputed merits issues so that an individual’s membership in the class depends on the validity of the claims. Specifically, the alleged class definition includes persons who received faxes that “did not (i) provide a toll-free telephone number and facsimile number where the fax recipient may make a request to the sender not to send any future ads nor (ii) inform the fax recipient that the sender’s failure to comply within 30 days of such a request is unlawful.” (Compl., ¶ 18.) The question of whether the opt-out notice complied with the TCPA a merits issue that would need to be resolved to determine any given individual’s membership in the 4 See, e.g., Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 950 (6th Cir. 2011) (affirming the district court’s judgment striking class allegations and dismissing a lawsuit prior to discovery); Thompson v. Merck & Co., No. C.A. 01-1004, 2004 WL 62710 (E.D. Pa. Jan. 6, 2004); In re Old Kent Mortg. Co. Yield Spread Premium Litig., 191 F.R.D. 155, 164 (D. Minn. 2000). Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 25 of 27 Page ID #:76 19 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 class. Lipstein, 296 F.R.D. at 291. Plaintiff’s class is entirely dependent on resolution of the merits of the substantive claims. This Court should therefore strike the proposed class, just as other courts have done in nearly identical situations. See Lindsay Transmission, LLC v. Office Depot, Inc., No. 4:12-CV-221 (CEJ), 2013 WL 275568, at *3-4 (E.D. Mo. Jan. 24, 2013) (striking class definition as fail-safe, where TCPA class was defined in part as all persons who “were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendant [and] with respect to whom Defendant cannot provide evidence of prior express permission or invitation for the sending of such faxes [and] with whom Defendant does not have an established business relationship”); G.M. Sign, Inc. v. Franklin Bank, S.S.B., No. 06 C 949, 2007 WL 4365359, at *3 (N.D. Ill. Dec. 13, 2007) (striking a class definition in TCPA action where the class included persons who were sent an “unlawful fax message” and for whom the defendant “cannot provide evidence of . . . permission or invitation for the fax to be sent”); Sauter, 2014 WL 1814076, at *8-9 (class definitions in TCPA action were fail-safe because they were restricted to “only those individuals who did not expressly consent to the receipt of the defendant’s phone calls made with the use of an ATDS” and thus consisted “solely of persons who can establish that defendant violated the TCPA”). Because the alleged class definition in this case is dependent on the resolution of merits issues, QIAGEN requests that the Court strike it as an impermissible fail-safe class. IV. CONCLUSION For the foregoing reasons, QIAGEN respectfully requests that this Court grant its motion in its entirety and without leave to amend. Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 26 of 27 Page ID #:77 20 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 35852157v.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: November 23, 2016 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ Joseph A. Escarez Robert M. Milligan Joseph A. Escarez Attorneys for Defendant QIAGEN NORTH AMERICAN HOLDINGS, INC. Case 2:16-cv-07638-PA-AS Document 14-1 Filed 11/23/16 Page 27 of 27 Page ID #:78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35977093v.1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARCARE d/b/a PARKIN DRUG STORE, on behalf of itself and all others similarly situated, Plaintiff, v. QIAGEN NORTH AMERICAN HOLDINGS, INC., Defendant. Case No. 2:16-cv-7638-PA-AS [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS Date: January 9, 2017 Time: 1:30 p.m. Judge: Hon. Percy Anderson Location: 350 W. 1st Street Courtroom 9A Los Angeles, California 90012 Date action filed: October 13, 2016 Case 2:16-cv-07638-PA-AS Document 14-2 Filed 11/23/16 Page 1 of 5 Page ID #:79 2 NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35977093v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS On January 9, 2016, the Motion to Dismiss and to Strike Class Allegations (the “Motion”) of defendant QIAGEN North American Holdings, Inc. (“QIAGEN”) came on for hearing before the Honorable Percy Anderson in Courtroom 9A of this Court, located at 350 W. 1st Street, Los Angeles, California 90012. QIAGEN and plaintiff ARcare d/b/a Parkin Drug Store (“Plaintiff”) appeared and argued through their respective counsel. The Court, having read and considered the papers filed in support of and in opposition to the Motion, the oral argument before the Court, and the full record on file in this matter, HEREBY ORDERS THAT: [GRANTING MOTION TO DISMISS] 1. QIAGEN’s Motion to Dismiss is GRANTED in its entirety. 2. The Complaint is dismissed in its entirety because Plaintiff lacks Article III standing. Plaintiff alleges only a technical violation of the Telephone Consumer Protection Act, 47 USC § 227 (“TCPA”) combined with, at most, de minimis injury that fails to rise to the level of actual, concrete injury-in-fact. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016); see also, e.g., Romero v. Dep’t Stores Nat’l Bank, No. 15-CV- 193-CAB-MDD, 2016 WL 4184099, at *6 (S.D. Cal. Aug. 5, 2016); Ewing v. SQM US, Inc., No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494, at *2-3 (S.D. Cal. Sept. 29, 2016) (J. Bencivengo); Supply Pro Sorbents, LLC v. Ringcentral, Inc., No. C 16-02113 JSW, 2016 WL 5870111, at *3 (N.D. Cal. Oct. 7, 2016) (J. White); Smith v. Aitima Med. Equip., Inc., No. EDCV1600339ABDTBX, 2016 WL 4618780, at *4 (C.D. Cal. July 29, 2016). Even if Plaintiff could establish it suffered some kind of injury-in-fact, it cannot show that its injury-in-fact is traceable or related to QIAGEN’s alleged violations of the TCPA. Plaintiff cannot connect its claimed loss of “paper, toner, and ink consumed in the printing of [QIAGEN’s] faxes” and “time that otherwise would have been spent on Case 2:16-cv-07638-PA-AS Document 14-2 Filed 11/23/16 Page 2 of 5 Page ID #:80 3 NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35977093v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s . . . business activities” with QIAGEN’s alleged TCPA violations, i.e. QIAGEN’s alleged failure to obtain prior express invitation or include an appropriate opt- out notice. If QIAGEN fully complied with the TCPA, Plaintiff would have lost the same amount of ink, toner, paper and time. “A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.” Romero, 2016 WL 4184099, at *6 (quoting McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998)); see also Ewing, 2016 WL 5846494, at *3. Plaintiff also cannot allege that he or any of the putative class members suffered a concrete injury resulting from defective opt-out notices. The putative class definition is limited to those individuals and entities who received faxes from QIAGEN that were (1) advertisements that (2) did not comply with the TCPA’s opt-out notice requirements. (Compl., ¶ 18.) Again, nowhere in the Complaint does Plaintiff allege what, if any, injury it or any of the putative class members suffered as a result of receiving faxes with defective opt-out notices. 2. Plaintiff fails to state a claim under the TCPA. To prove a violation of the TCPA, plaintiff must establish that the defendant sent “to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C) (emphasis added). However, on the face of the faxes attached to the Complaint, it is clear that none is an advertisement. The faxes attached to the Complaint, which Plaintiff alleges are “exemplary of the junk faxes Defendant sends,” (Compl. ¶ 13) do not promote goods or services that are for sale to the fax recipients. Rather, each fax is merely informational and educational. Any advertising elements contained in the Exhibits are incidental and insufficient to transform the educational and informational faxes into advertisements. Therefore, the TCPA does not apply, and Plaintiff cannot state a claim for violation of the TCPA. 3. Plaintiff also fails to state a claim for treble damages under the TCPA. Plaintiff seeks the award of treble damages alleging only general claims that statutory Case 2:16-cv-07638-PA-AS Document 14-2 Filed 11/23/16 Page 3 of 5 Page ID #:81 4 NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35977093v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damages under the TCPA “may be trebled when the violation is willing or knowing.” (Compl., ¶ 5.) This bare allegation does not, and cannot, pass muster under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Plaintiff’s request for treble damages is therefore dismissed. For the foregoing reasons, Plaintiff’s individual claims under the TCPA are dismissed WITH PREJUDICE, and Plaintiff’s class claims under the TCPA are dismissed without prejudice. [GRANTING MOTION TO STRIKE] 1. QIAGEN’s Motion to Strike Class Allegations is GRANTED in its entirety. 2. Under Rule 12(f), the Court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12 (f). The Court is thus authorized “to strike class allegations prior to discovery if the complaint demonstrates that a class action cannot be maintained.” Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial....” Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) rev’d on other grounds, 510 U.S. 517 (1994) (citations and internal quotation marks omitted). 3. A fail-safe class is “one in which whether a person qualifies as a member depends on whether the person has a valid claim.” Lipstein v. UnitedHealth Grp., 296 F.R.D. 279, 291 (D.N.J. 2013) (internal quotations and citations omitted). To “defin[e] a class to consist of solely those who have certainly suffered injury is forbidden.” Yarger v. ING Bank, FSB, 285 F.R.D. 308, 317 (D. Del. 2012). 4. Plaintiff’s proposed class is a fail-safe class because it incorporates disputed merits issues so that an individual’s membership in the class depends on the validity of the claims. Specifically, the alleged class definition includes persons who received faxes that “did not (i) provide a toll-free telephone number and facsimile number where the fax Case 2:16-cv-07638-PA-AS Document 14-2 Filed 11/23/16 Page 4 of 5 Page ID #:82 5 NOTICE OF MOTION AND MOTION TO DISMISS AND TO STRIKE CLASS ALLEGATIONS 35977093v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recipient may make a request to the sender not to send any future ads nor (ii) inform the fax recipient that the sender’s failure to comply within 30 days of such a request is unlawful.” (Compl., ¶ 18.) Because the proposed class definition in this case is dependent on the resolution of merits issues, it constitutes an impermissible fail-safe class. Therefore, the proposed class definitions and related paragraphs set forth in Plaintiff’s Complaint are ordered STRICKEN. IT IS SO ORDERED. DATED: The Honorable Percy Anderson U.S. Magistrate Judge Case 2:16-cv-07638-PA-AS Document 14-2 Filed 11/23/16 Page 5 of 5 Page ID #:83