Can an alleged pattern of unwanted calls and texts constitute an unfair trade practice in violation of state law? An interesting decision out of my home state delved into that issue this week, dismissing a plaintiff’s state law claim based on alleged TCPA violations.
In Pavelka v. Charter Communs., 2021 U.S. Dist. LEXIS 227756 (D. Conn. Nov. 29, 2021), Plaintiff alleged that he received numerous calls and text messages from Charter Communications concerning the purchase of telephone or internet services. On this basis, he brought TCPA and state law claims against Charter, which moved to dismiss Plaintiff’s Amended Complaint on two grounds. The first was the tried-and-true Creasy argument, which had worked pretty well for Charter (the original defendant in Creasy and the first to win on that argument) before. Unfortunately, Charter didn’t fare as well this time around – the Court found that severance of the government-debt exemption applied retroactively, and the TCPA was constitutional at the time of the alleged conduct. As a result, Plaintiff’s TCPA claims were allowed to proceed.
In addition to his TCPA claims, one of Plaintiff’s causes of action was a state law claim under the Connecticut Unfair Trade Practices Act (“CUTPA”). Plaintiff alleged that Charter’s practice of contacting him and other consumers constituted a nationwide pattern of invasion of privacy and violation of the TCPA. On this basis, Plaintiff brought a state law claim against Charter, alleging that Charter’s conduct was immoral, oppressive, and unscrupulous, and caused injury to Plaintiff and the class members.
Charter moved to dismiss the CUTPA claim on the basis that Connecticut law did not apply to the claim, and the Pavelka Court agreed. It first found that Connecticut law did not apply to the claim because Connecticut was not the state with the most significant relationship to the parties, even though Charter had its principal place of business there. Instead, Texas law applied, as Plaintiff was a Texas resident and the alleged conduct had occurred in Texas.
The Pavelka Court also found that Plaintiff did not have standing to bring the state law claim because he had not sufficiently alleged “ascertainable loss of money or property,” a requirement under CUTPA. For example, Plaintiff had not alleged that he incurred any charges or suffered economic harm from the calls and text messages he allegedly received. While Plaintiff had alleged that Charter’s actions constituted an invasion of privacy, the Court found this was not sufficient to constitute an “ascertainable loss.” Although the Court did find that the allegations of unwanted calls and text messages could confer Article III standing, those allegations were not sufficient to allow the state law claim to survive.
Pavelka is a key reminder that the importance of assessing standing does not end at Article III, particularly where—as here—the standard for federal and state claims can differ so significantly. We’ll continue to keep an eye on how Plaintiff’s TCPA claims fare for you.