On this last day of the lunar year of 2019, I am sharing a recent case here, part of which may be favorable for some of you, if you are sitting in the C-suite, reading this. (Blink one eye emoji.)

Pro se plaintiff sued defendants PulseTV and its co-founder and CEO for violations of TCPA by sending six text messages to his cell phone without express consent. Plaintiff asserted three counts for violations of TCPA provisions and one count for violation of the New Jersey Consumer Fraud Act (“NJCFA”). Defendants filed Rule 12(b)(6) motion to dismiss and Rule 11 motion for sanctions.

The New Jersey District Court dismissed the fourth count for violation of the NJCFA against all defendants because there was no right to private action under such law that Plaintiff relied on. The court further dismissed the three counts for TCPA violations against the defendant CEO, because Plaintiff’s allegations against the CEO were solely based on his position in PulseTV, which were insufficient to establish his personal involvement in PulseTV’s purported unlawful conduct. The court specifically stated that a corporate officer could only be personally liable if he “actually committed the conduct that violated the TCPA,” such as “set[ting] up the automatic telephone dialing systems and design[ing] them to function unlawfully,” citing City Select Auto Sales Inc. v. David Randall Associates, Inc., 885 F.3d 154, 162 (3d Cir. 2018) and McGee v. Halsted financial Services, LLC, No. 13-1555, 2014 WL 1203138, at *1 (D. Del. Mar. 19, 2014). Absent such allegations in the complaint, the court dismissed all three counts for TCPA violations as to the defendant CEO.

With respect to count one for violation of 47 U.S.C. § 227(b)(1)(A)(iii), PulseTV asserted two arguments for dismissal. First, it argued that plaintiff could have simply replied “Stop” to the text messages, which would have ceased any future text messages from PulseTV; however, plaintiff did not do so, and thus, he received more text messages. The court was not convinced by this argument because plaintiff did not allege that he revoked his consent to receiving text messages, rather, plaintiff alleged that he never consented to receive any text messages.

Second, PulseTV cited to Zemel v. CSC Holdings LLC, No. 16-4064, 2017 WL 1503995, at *1 (D.N.J. Apr. 26, 2017), for the proposition that an unidentifiable loss of minutes on the plaintiff’s cellular plan could not amount to the harm the TCPA was enacted to prevent. The court, however, turned to Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017), which was decided by the Third Circuit shortly after Zemel. In Susinno, the Third Circuit found that “[w]hen one sues under a statute alleging ‘the veryinjury [the statute] is intended to prevent,’ and the injury ‘has a close relationship to a harm … traditionally … providing a basis for a lawsuit in English or American courts,’ a concrete injury has been pleaded.” Id. at 351 (internal citation omitted). Therefore, under Susinno, the plaintiff has pled sufficiently for Article III standing. As a result, the court denied PulseTV’s motion to dismiss as to count one.

For plaintiff’s count two for unlawfully soliciting his number on the national no-call-list, PulseTV based its argument on affirmative defense of preventive practices and procedures in good faith. To prevail on a Rule 12(b)(6) motion to dismiss based on an affirmative defense, a defendant must show that “the defense is apparent on the face of the complaint and documents relied on in the complaint.” Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127, 130 (3d Cir. 2018). Here, because the court found that such affirmative defense was not apparent on the face of plaintiff’s complaint, PulseTV’s motion to dismiss as to the second count was denied.

As to count three for knowing and willful violation of TCPA, plaintiff’s allegation – “Defendants knowingly or willfully violated the TCPA … when they resorted to ‘robo’ call and solicit Plaintiff … and initiated their text messages to Plaintiff without prior express written consent to do so” – was found sufficient to survive a Rule 12(b)(6) motion to dismiss.

Lastly, the court denied defendants’ Rule 11 motion for sanctions on the grounds that some of plaintiff’s claims survived a motion to dismiss and thus the action could not be completely unmeritorious or frivolous.