Arizona Court of Appeals Division One Panels Hold that Statutory Claims for Receipt of "Spam Faxes" are not Assignable.

Bert Martinez filed a $3.5 million dollar lawsuit against Linda and Mike Green, based on alleged assignments of claims under the Telephone Consumer Protection Act (TCPA) from recipients of the Greens’ unsolicited facsimiles. The TCPA provides for statutory damages of $500 per spam fax and treble damages if the sender violated the act willfully or knowingly. The Greens moved to dismiss Martinez’s claim, arguing that because TCPA claims are not assignable, Martinez had no claim. The trial court agreed and dismissed Martinez’s TCPA claim.

The Court of Appeals affirmed. The court first considered the nature of TCPA claims. The Court concluded, based on the TCPA’s legislative history and other opinions construing the Act, that the TCPA prohibits spam faxes because they are a nuisance that invade a recipient’s privacy. Finding no right of assignment within the statute’s text, the court then considered whether privacy claims are assignable under Arizona common law. Arizona forbids the assignment of personal injury torts, such as invasion of privacy. Arizona courts also look to the survivability of a claim to determine whether it can be assigned. Because Arizona’s survival statute specifically precludes the survivability of invasion of privacy claims, A.R.S. 14-3110, TCPA violations cannot be assigned.

Judge Portley authored the unanimous decision in which Presiding Judge Irvine and Judge Gemmill concurred.