In January 2008, the Supreme Court declined to review two lower court decisions holding that claims filed under the Telephone Consumer Protection Act (TCPA) cannot be assigned.
In US Fax Law Center, Inc. v. iHire, LLC, 476 F.3d 1112 (10th Cir. 2007), the Tenth Circuit Court of Appeals upheld the dismissal of six lawsuits stemming from claims that individuals and businesses received junk faxes in violation of the TCPA. The plaintiffs obtained and aggregated assignments of such claims to then pursue in court. The court held that, under Colorado law, TCPA claims can not be assigned because “they are in the nature of personal-injury, privacy claims,” rather than compensatory or economic claims. The court also upheld the lower court determination that because the underlying TCPA claims could not be assigned and were thus invalid, the plaintiffs lacked standing to assert the claims.
In McKenna v. Oliver, 159 P.3d 693 (Colo. Ct. App. 2006), the Colorado Court of Appeals similarly determined that TCPA claims are “in the nature of a violation of the right to privacy” and are not assignable. Thus, the court held that the plaintiff – a TCPA claim aggregator like the plaintiffs in iHire – did not have standing to pursue the claims because he was only an assignee and did not personally receive unsolicited faxes from the defendants. The court dismissed the claim.
Although the iHire and McKenna decisions (and the Supreme Court’s decision not to review those decisions) do not change basic liability under the TCPA, they do make it more difficult for plaintiffs to aggregate and traffic in others’ TCPA claims. However, because both courts relied on state law to determine that TCPA claims are personal in nature, courts in other states may reach different conclusions.