Today’s blog post presents the curious case of Thompson v. Genesco, Inc., 2024 WL 81187 (E.D. Mo. Jan. 8, 2024) (Clark, C.J.), in which a federal district court sua sponte remanded a Federal Telephone Consumer Protection Act class action to a St. Louis City circuit court for lack of standing—but not for the reason you might think.

Typically, the questions on the tip of class action litigators’ tongues are whether a class claim for mere statutory damages satisfies the injury-in-fact requirement of standing articulated in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and, if not, whether the same claim may be maintained in state court if the state does not follow federal standing principles. See, e.g., the amicus brief of the U.S. Chamber of Commerce in Fausett v. Walgreen Co., No. 129783 (Illinois) (arguing in a currently-pending appeal the importance of a concrete injury requirement in a BIPA class action).

The specter of unremovable zombie class actions for statutory damages only is one that haunts defense lawyers like me in the middle of the night. Fortunately Missouri (where I live) clearly requires a state court plaintiff to have a concrete injury to bring a claim. See, e.g., Schweich v. Nixon, 408 S.W.3d 769, (Mo. en banc 2013) (“‘A justiciable controversy exists where [1] the plaintiff has a legally protectable interest at stake, [2] a substantial controversy exists between parties with genuinely adverse interests, and [3] that controversy is ripe for judicial determination.’”) (citation omitted).

But the Thompson case does not raise these injury-in-fact issues, which are currently the subject of much discussion in the class action bar. Instead, Thompson focuses on a different element of standing: traceability. And the failure to meet this “causation” requirement also should make the claim fail in any state court, meaning that Thompson does not seem to portend litigating unremovable state court class actions. In short, Thompson identifies a fundamental pleading failure on a causation issue that should be the death knell for the class claim in federal or state court.

The plaintiff filed the Thompson TCPA class action in state court, and it was promptly removed by the defendant, which also moved for judgment on the pleadings. Chief Judge Stephen R. Clark sua sponte raised the issue of Article III standing, directing the parties to brief the issue. Surprisingly, both defendant and plaintiff took the positions that the federal court had jurisdiction and that plaintiff had pled standing. Chief Judge Clark disagreed.

In analyzing the issue, he began by setting forth the three requirements of federal standing: (1) “a cognizable injury,” (2) that is “‘fairly traceable to the defendant’s unlawful conduct,’” and (3) “is likely to be redressed by the requested relief.” 2024 WL 81187, at *2 (citations omitted). Chief Judge Clark then analyzed the much-discussed requirement of a concrete and particularized injury. The parties clearly had briefed this issue extensively. Judge Clark agreed with the parties that receiving unwanted texts constituted a sufficiently concrete and particularized injury, observing that “[b]oth the TCPA and the common law tort of intrusion upon seclusion address the same kind of harm: the disruption of one’s peace and privacy.” Id. at *3 (relying upon Drazen v. Pinto, 74 F.4th 1336, 1345 (11th Cir. 2023)). Allegations that plaintiff received “numerous annoying” texts that “intruded on [plaintiff’s] peace, privacy, and seclusion” were sufficient to plead an injury for standing purposes. Id.

The standing problem that required remand of the case lay in the “causation” inquiry inherent in the traceability requirement. This requirement is less frequently discussed in case law, presumably because it is a rather obvious hurdle to avoid. As Chief Judge Clark explained, “To satisfy the traceability prong of Article III standing, a plaintiff must show that there is a “‘causal connection between the injury and the conduct complained of.’” Id. at *4 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992)). The court held that the complaint did not plead that the plaintiff’s injury—receiving the annoying texts—was caused by the unlawful conduct pled.

Under the TCPA, it is unlawful to text people who are on a federal “Do Not Call” list. 47 C.F.R. § 64.1200(c). It is also unlawful for a telemarketer to fail to maintain its own internal, company-specific “Do Not Call” list. 47 C.F.R. § 64.1200(d). The problem that Chief Judge Clark put his finger on was that although plaintiff repeatedly maintained that he was suing under the provision that related to a company’s failure to maintain its own internal list (64.1200(d)), he never pled that he attempted to put himself on such a list. Rather, plaintiff pled that he had put himself on the federal list, but steadfastly refused to allege a cause of action under the section that applies to that conduct (64.1200(c)). Thus, the court held, plaintiff lacked standing:

“But an obvious, critical link between his injury and those violations is glaringly absent: the factual allegation that Thompson actually asked to be put on that internal do not call list in the first place. Nowhere in his Amended Complaint does Thompson allege that he ever asked Genesco to place him on such a list, or simply not to contact him. In fact, Thompson does not allege any way in which he would have remotely benefitted from Genesco’s compliance with § 64.1200(d).

“. . . Therein lies the traceability problem: if Thompson cannot allege a way—any way—in which he would appear on a Genesco internal do-not-call list, then his injury cannot be traced to Genesco’s failure to maintain one. . . . Without such a ‘causal connection,’ there is no traceability, and consequently, no Article III standing to challenge Genesco’s alleged failure to maintain compliance with § 64.1200(d).”

2024 WL 81187, at *5-*6 (relying on Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019)).

Because the Amended Complaint failed the traceability requirement, the court remanded the case to state court and denied as moot the defendant’s motion for judgment on the pleadings.

The Thompson opinion suggests that:

  • Courts increasingly are focused on standing in class action cases, and you should be prepared for courts to raise standing issues sua sponte at the outset of the litigation (particularly if the case has been removed to federal court).
  • Opinions focused on “traceability” or “causation” probably do not present the same risk of an unremoveable state court class action as opinions focused on whether there is a particularized and concrete injury. For the latter type of case, the concern is that some states may lack developed case law on standing, thereby allowing a case to proceed in state court that would not be cognizable in federal court due to federal standing doctrine. But most states have strong case law requiring a plaintiff to plead causation, i.e., that their injury was caused by the allegedly unlawful conduct. Where a federal court holds that a complaint fails to plead sufficient causation to meet the traceability requirement, that decision should be subject to comity in state court; whether the problem is described as “standing” or just “causation” in state precedents, the fact remains that an absence of allegations regarding basic causation should result in a quick dismissal of the action, even in state court, whether on standing or on the merits. And if the plaintiff amends the complaint to fix this pleading problem, the case should then become removeable to federal court.
  • Lawyers sometimes debate whether to cite out-of-Circuit authority to federal district court judges and, if so, how prominently to feature it. The court in Thompson placed considerable reliance on a few decisions from the Eleventh Circuit, reinforcing my belief that where there is case law that strongly supports your position, you should cite it, regardless of which court issued the opinion.

No Standing at St. Louis Civil Courts Copyright 2016 Russell Jackson
Photo of Russell Jackson Russell Jackson

Russell grew up in a rural Missouri town of 5,000 people. There were 103 people in his high school’s graduating class.

But he spent 23 years practicing law in NYC, beginning at Cravath and spending the majority of his career at Skadden, where…

Russell grew up in a rural Missouri town of 5,000 people. There were 103 people in his high school’s graduating class.

But he spent 23 years practicing law in NYC, beginning at Cravath and spending the majority of his career at Skadden, where he was a partner in the Mass Torts Group. He returned to Missouri, and now is a partner at Dowd Bennett LLP in St. Louis.

Russell loves St. Louis, so don’t even think about saying anything bad about it! He enjoys the world-class arts institutions here, and that they are freely accessible to the public. Russell served as the Chairman of the Board of Jazz St. Louis, a 501(c)(3) organization that presents internationally-known musicians on its stage and uses professional jazz musicians to teach area youth how to play jazz. He is a trustee of the St. Louis Public Library Foundation, and is on the board of Friends of St. Louis Public Radio.

This isn’t Russell’s first blog. In 2010 and 2011, the ABA Journal included his blog “Consumer Class Actions and Mass Torts” as among its “Blawg 100.” Russell also wrote a column on products liability for the National Law Journal for 19 years. 

Russell is an elected member of the American Law Institute and has taught aggregate litigation as an adjunct professor at Washington University in St. Louis for the last decade. Previously he taught products liability as an adjunct professor at Brooklyn Law School and Fordham University School of Law. He also is a former Chairman of the Products Liability Committee of the New York City Bar Association.