In St. Louis Heart Center, Inc. v. Nomax, Inc., 2017 WL 1064669, at *2 (E.D.Mo., 2017), Judge White dismissed a TCPA class action because the class representative lacked standing.
The Court agrees that SLHC has not alleged a concrete and particularized injury arising from the alleged deficiency in the opt-out notice. Spokeo,, 136 S. Ct. at 1548. Further, the Court holds that SLHC cannot save its claim by alleging a technical deficiency in the opt-out notice. “The present case does not involve a circumstance in which the violation of the procedural requirement alone is a concrete injury in fact.” Woods v. Caremark, L.L.C., No. 4:15-CV-00535-SRB, 2016 WL 6908108, at *5 (W.D. Mo. July 28, 2016) (Spokeo, 136 S. Ct. at 1549). The Court holds that the opt-out notice conveys to fax recipients the means and opportunity to opt-out of receiving future faxes, regardless of whether the faxes also meet all of the technical requirements of 47 C.F.R. § 64.1200. Under the undisputed facts, SLHC requested and received samples of Nomax’s Effer-K on at least three to four occasions. Under Supreme Court and Eighth Circuit precedent, SLHC has not alleged a concrete or particularized harm resulting from receiving faxes that SLHC both invited and did not rebuke. Further, a “heightened risk of receiving future unwanted fax advertisements” does not present a concrete injury as a matter of law. See also Duqum v. Scottrade, Inc., No. 4:15-CV-1537-SPM, 2016 WL 3683001, at *6 (E.D. Mo. July 12, 2016) (“increased risk of identity theft and fraud are not sufficient to demonstrate injury in fact for purposes of Article III standing”). The Court holds that SLHC has not alleged an injury in fact as required by Article III and his “complaint asserts ‘a bare procedural violation, divorced from any concrete harm.’ ” Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930 (8th Cir. 2016) (quoting Spokeo, 136 S.Ct. at 1549).