AP GAS & ELECTRIC FIGHTS BACK AGAINST TCPA CLAIMS: Western District of Pennsylvania Rules on Three Motions

Hi TCPAWorld! The Baroness here with the latest TCPA news.

This decision came down yesterday in the Western District of Pennsylvania and not the best news for AP Gas & Electric.

By way of background, Stewart Abramson initiated this putative class action against AP Gas & Electric (PA), LLC alleging that AP Gas violated the TCPA by sending at least eleven (11) prerecorded telemarketing calls to him without his consent.

AP Gas fought back aggressively and filed a motion to dismiss 12(b)(1) for lack of standing, motion to dismiss 12(b)(6) for failure to state a claim, and a motion to strike the class allegations. This is what we like to see.

12(b)(1) motion. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” Art. III, § 2. “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy,” and it thus “limits the category of litigants empowered to maintain a lawsuit in federal court….” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). On a motion to dismiss for lack of standing, “[t]he plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing the elements [of standing].”

AP Gas argued that Abramson lacked standing to pursue injunctive relief because the Complaint failed to allege “any threat of possible future injury” by AP Gas as required under Article III of the United States Constitution. However, the Court was not persuaded by this argument. Specifically, the Court noted Abramson alleged the elements of a TCPA claim to satisfy a demand for injunctive relief: “(1) ongoing telemarketing by AP Gas using automated calls to send prerecorded messages; (2) Abramson’s receipt of at least eleven prerecorded calls from AP Gas between August 9 and 18, 2002, without his consent; and (3) injury in the form of disturbed solitude and annoyance as well as being temporarily deprived of the use of his phone.” The Court stated “[t]hese allegations adequately place him within the zone of interests protected by the TCPA, and allege a pattern and practice by AP Gas of violating the TCPA.” For this reason, the Court denied the motion to dismiss for lack of standing.

12(b)(6) motion. To state a claim under Section 227(b)(1)(B) of the TCPA, a plaintiff must allege: (1) that the defendant initiated a telephone call to a residential telephone line, (2) using an artificial or prerecorded voice to deliver a message, (3) without the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(B).

AP Gas next argued that Abramson failed to adequately allege element number 1—that is, initiated the call to a residential line. Looking to Plaintiff’s Complaint, however, Plaintiff alleged he received at least one of the eleven (11) pre-recorded calls “on his residential line.” The Court found this factual allegation, “given [its] plain meaning [] [was] sufficient to support a plausible inference that a call was received on Abramson’s residential line.” As such, the Court found the allegations from the Complaint and the plausible inferences drawn from them state a claim against AP Gas for violation of the TCPA. For this reason, the Court denied the motion to dismiss for failure to state a claim.

12(f) motion. Lastly, AP Gas sought to strike the class allegations because: (1) the proposed class was impermissibly overbroad; (2) the class is not “fail-safe”; and (3) common questions of law and fact do not dominate. But the Court ultimately concluded, the motion was “premature” and “that such motions [to strike class allegations] should be granted only in the rare case where the complaint demonstrated that no amount of discovery will allow the Plaintiff to meet the requirements of class certification.” Importantly, the Court stated that “discovery will or will not reveal whether the commonality concerns raised by Defendant are well founded.” For this reason, the Court denied the motion to strike.

Unfortunately now for AP Gas, Abramson’s claims will proceed and the parties will move forward with litigation. More to come.


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