In Blanchard v. Fluent, LLC., 2018 WL 4373099, at *2–3 (N.D.Cal., 2018), Judge Chesney remanded a case to state court, referring to TCPA precedent.
Where, as here, a plaintiff brings a claim under a statute prohibiting the making of false or misleading commercial speech, courts have found the plaintiff, to have standing, must allege an injury caused by such speech. See, e.g., Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015) (holding, to establish Article III standing under California statutes prohibiting “false advertising,” plaintiff “must meet an economic injury-in-fact requirement,” such as by showing product was purchased in reliance on challenged advertisement); TrafficSchool.com, Inc. v. Edriver, Inc., 653 F.3d 820, 825 (9th Cir. 2011) (holding, for plaintiff/competitor to have standing to bring claim for “false advertising” under Lanham Act, plaintiff must show defendant’s advertising has or could “harm plaintiff’s business”); Beyond Systems, Inc. v. Kraft Foods, Inc., 972 F. Supp. 2d 748, 752, 766 (D. Md. 2013) (rejecting argument that standing to bring claim under § 17529.5, as well as under analogous Maryland state statute, can be established by showing “mere receipt of the offending e-mails”). As noted, plaintiffs do not allege any facts to support a finding that they have incurred an injury from their receipt of the challenged emails. Nor has Fluent otherwise shown such an injury was incurred. Consequently, Fluent has failed to show plaintiffs have standing under Article III. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231(1990) (holding standing must “affirmatively appear in the record”) (internal quotation and citation omitted). Accordingly, to the extent plaintiffs seek an order remanding the above-titled action to state court, the motion will be granted. See Polo, 833 F.3d at 1197 (holding district court lacks subject matter jurisdiction over removed complaint that “lack[s] a named plaintiff with Article III standing”); see also 28 U.S.C. § 1447(c) (providing “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded”).