District Court (Ill.) Says Blast-Fax Recipient Has Post-Spokeo Standing By Alleging Lost Toner/Paper, and Does Not Have to Plead How Much

In Shaun Fauley v. Drug Depot, Inc., 2016 WL 4591831, at *3 (N.D.Ill., 2016), Judge Kendall allowed a TCPA blast-fax class action past the pleadings stage based on post-Spokeo standing.

Based on that holding, APS contends that the Complaint should be dismissed as it is alleges nothing more than a procedural violation of the TCPA. (See Dkt. No. 40 at 10.) However, Fauley clearly alleges additional, real harm, including loss of paper and toner consumed in the printing of the fax, loss of use of his telephone line and fax machine during receipt of the unsolicited fax, and loss of time receiving, reviewing, and disposing of the fax. (Dkt. No. at ¶ 36.) Such allegations are sufficiently “real” to meet the concreteness requirement under Spokeo. See, e.g., Palm Beach, 781 F.3d at 1252 (“Here, it is indisputable that Palm Beach Golf’s fax machine was occupied during B2B’s successful transmission of the unsolicited fax advertisement. Because Palm Beach Golf has suffered a cognizable, particularized, and personal injury, it has Article III standing.”); Am. Copper & Brass, Inc. v. Lake City Indus. Products, Inc., 757 F.3d 540, 544 (6th Cir. 2014) (rejecting motion to dismiss on standing grounds and holding that “unsolicited fax advertisements impose costs on all recipients, irrespective of ownership and the cost of paper and ink, because such advertisements waste the recipients’ time and impede the free flow of commerce.”); G.M. Sign Inc. v. Stealth Sec. Sys., Inc., No. 14 C 09249, 2015 WL 9268416, at *3 (N.D. Ill. Dec. 21, 2015); R. Rudnick & Co. v. G.F. Prot., Inc., No. 08 C 1856, 2009 WL 112380, at *3 (N.D. Ill. Jan. 15, 2009).  In support of its motion to dismiss, APS first contends that Fauley should be required to allege the actual cost of receiving the fax “in terms of time, toner, and machine use.” (See Dkt. No. 54.) However, APS fails to cite to any authority indicating that such facts are necessary at the pleading stage or under the notice pleading standard. Second, APS argues that the cases that Fauley relies upon, specifically Imhoff and Palm Beach, are inapposite because they were decided pre-Spokeo and “did not analyze how occupying a fax line creates a concrete injury, or how much time or toner actually creates an injury that can withstand Article III scrutiny.” (Dkt. No. 54 at 4.) Yet, Imhoff and Palm Beach each specifically addressed the issues of concrete and particularized harm as required by Spokeo. See Palm Beach, 781 F.3d at 1253; Imhoff, 792 F.3d at 633. In addition, not only does APS fail to provide any case law in support of its position that there must be a specific amount of time or toner lost to confer Article III standing, but such de minimus harm arguments do not undermine Article III standing. See, e.g., R. Rudnick, 2009 WL 112380, at *2 (“GFP also argues that there is no substantial injury to consumers here because each fax page is inexpensive, costing the consumer only a sheet of paper and some toner or ink. This argument misses the point.”); Brodsky v. HumanaDental Ins. Co., No. 10-C-3233, 2011 WL 529302, at *7 (N.D. Ill. Feb. 8, 2011); Garrett v. Rangle Dental Lab., No. 10 C 1315, 2010 WL 3034709, at *1 (N.D. Ill. Aug. 3, 2010) (holding that the “alleged loss is de minimus and can be remedied by his TCPA claim.”); Rossario’s Fine Jewelry, Inc. v. Paddock Publications, Inc., 443 F. Supp. 2d 976, 978 (N.D. Ill. 2006) (same). Third, APS’s position that there is no injury in connection with the occupancy of Fauley’s telephone line because “[g]enerally, the cost associated with telephone fax line[s are] fixed,” see Dkt. No. 54 at 4, is rejected because this argument was presented for the first time in APS’s Reply brief and because such factual disputes are better considered at the summary judgment stage. See Eberhardt v. Brown, 580 F. App’x 490, 491 (7th Cir. 2014) (parties waive arguments that they raise for the first time in a reply brief). On the other hand, because businesses do not have privacy interests in seclusion or solitude, see, e.g., Maxum Indem. Co. v. Eclipse Mfg. Co., No. 06 C 4946, 2013 WL 5993389, at *7 (N.D. Ill. Nov. 12, 2013) (collecting cases), Fauley’s allegation that the fax, that was sent to his business, constitutes an invasion of privacy does not allege injury as required under Article III. Nevertheless, given his other allegations, Fauley has sufficiently alleged both concrete and particularized harm as required for Article III standing