Pleading a TCPA claim is usually not the tricky part for a plaintiff, and courts normally do not dismiss TCPA lawsuits on the pleadings alone. But a recent decision provides instructive guidance for the sort of threadbare allegations that fail to clear that initial hurdle.
Namely, the United States District Court for the Eastern District of Virginia recently dismissed a bare-bones TCPA complaint and putative class action filed by Craig Hicks. Hicks v. Alarm.com Inc., No. 1:20-cv-532, 2020 U.S. Dist. LEXIS 157433 (E.D. Va. Aug. 6, 2020). Mr. Hicks alleged that Alarm.com violated the TCPA because he received two text messages and one call from “Alarm.com.” Recounting Mr. Hicks’ allegations, the Court described them as “lean,” and observed that the “connection between these communications and” Alarm.com were “factually flimsy.” As a result, the Court agreed “that there are no facts detailing Alarm.com’s involvement in placing any calls,” nor did Mr. Hicks allege any facts to suggest Alarm.com sent the texts at issue. The Court also refused to credit Mr. Hick’s “conclusory” allegations and so it dismissed Mr. Hicks’ complaint.
Notably too, Mr. Hicks expressly disclaimed any theory of vicarious liability, which the Court described as “curious” given the absence of other supporting allegations. The Court noted that Alarm.Com had faced other lawsuits based on conduct by third-party dealers, but did not address the issue in greater detail given Mr. Hicks’ “abandonment” of the vicarious liability “legal theory.”
And, though not material to the dismissal, the Court criticized Mr. Hicks for relying on anonymous online complaints. The Court explained that “a total of nine anonymous online entries” did not qualify as “myriad online complaints” as Mr. Hicks argued. The Court found that Mr. Hicks’ characterization was “hyperbolic and unsupported.”
The Hicks case offers useful guidance for TCPA Defendants facing a new TCPA lawsuit. Where a plaintiff cannot link a call or text to a particular company, but instead resorts to hyperbole, anonymous internet allegations, and innuendo, the claim may fail on the pleadings alone.