St. Louis Heart Center, Inc. v. Nomax, Inc.

Following this Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), three circuit courts of appeals have held that a failure to disclose information required by various federal consumerprotection laws is a “concrete” Article III injury, with no requirement that the consumer show “additional harm” resulting from the disclosure violation. See Macy v. GC Servs. Ltd. P'ship, 897 F.3d 747, 759 (6th Cir. 2018); Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017); Strubel v. Comenity Bank, 842 F.3d 181, 190, n.8 (2d Cir. 2016) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982)). The Eighth Circuit in this case, however, held there was no concrete injury from Respondent Nomax, Inc.’s failure to make “legally mandated disclosures in its opt-out notice” required by the Telephone Consumer Protection Act of 1991 (“TCPA”) and related regulations on facsimile advertisements Nomax sent Petitioner, on the basis that Petitioner “never attempted to opt-out of receiving future faxes” or showed that Nomax “would have ignored such a request” if it had been made. The question presented is whether a failure to disclose information mandated by federal law that is necessary for a consumer to exercise her rights under those laws—such as the right to “opt out” of future fax advertisements—is a “concrete” injury in itself, as held by the Second, Sixth, and Ninth Circuits, or whether a plaintiff must show additional harm resulting from the failure to disclose, as the Eighth Circuit held in this case.