Standing and the Telephone Consumer Protection Act
The Telephone Consumer Protection Act is a federal statute enacted in 1991 which allows (with some exceptions) Americans to sue for receiving text messages dialed with an autodialer, or for receiving cell phone calls dialed with a autodialer or featuring a prerecorded voice, or for receiving telephone landline calls at home which feature a prerecorded voice. The TCPA provides for statutory damages of from $500 to $1500 per illegal call.
Now the United States Constitution requires Federal Courts to only consider and adjudicate cases and controversies. United States Constitution Article III Section 2 Clause 1. The Federal Courts have interpreted that Constitutional provision to mean in part that litigants must have standing – have suffered a certain type of injury in order to litigate a case in Federal Court.
On May 15, 2016, the United States Supreme Court issued its decision in the case of Spokeo v. Robins, Inc. The Spokeo decision described what types and level of damage a plaintiff must have before the plaintiff could prosecute a civil case in federal court.
Many commentators, especially those with a defense bent, interpreted the Spokeo decision to be the death knell of statutory claims with statutory damages.
However, for the TCPA, most federal courts have ruled that a TCPA violation automatically satisfies the damage requirement of Spokeo or Article III Section 2 of the United States Constitution. See e.g. Aranda v. Caribbean Cruise Line, Inc., 2016 U.S. Dist. LEXIS 111828 * 19-21(N.D. Ill. August 23, 2016); Krakauer v. Dish Network, LLC, 168 F.Supp.3d 843, 845 (M.D. N.C. 2016); Mey v. Got Warranty, Inc., 2016 U.S. Dist. LEXIS 84972 *12-23 (N.D. W.Va. June 30, 2016); Booth v. Appstack, Inc., 2016 WL 3030256 * 5 (W.D. Wash. 2016); Rogers v. Capital One Bank (USA), 2016 WL 3162592 * 2 (N.D. Ga. 2016); Booth v. Appstack, Inc., 2016 U.S. Dist. LEXIS 68886 * 16-17 (W.D. Wash. 2016).
The United States District Court for the Northern District of West Virginia recently found that the recipient of an illegal Robocall has standing to assert a TCPA damages class action claim against the Robocallers. Mey v. Got Warranty, Inc., 2016 U.S. Dist. LEXIS 84972 *12-23 (N.D. W.Va. June 30, 2016).
In declaring that receiving an illegal Robocall automatically grants standing to sue under the TCPA the United States District Court for the Northern District of West Virginia declared:
“The main types of intangible harm that unlawful calls cause are (1) invasion of privacy, (2) intrusion upon and occupation of the capacity of the consumer’s cell phone, and (3) wasting the consumer’s time or causing the risk of personal injury due to interruption and distraction. [. . .] Even if the consumer does not answer the call or hear the ring tone, the mere invasion of the consumer’s electronic device can be considered a trespass to chattels, just as “plac[ing a] foot on another’s property” is trespass. Spokeo, at 1551 (Thomas, J., concurring).”
Mey v. Got Warranty, Inc., 2016 U.S. Dist. LEXIS 84972 *14-15 (N.D. W.Va. June 30, 2016); accord Krakauer v. Dish Network, LLC, 168 F.Supp.3d 8433, 845 (M.D. N.C. 2016).
The United States District Court for the Northern District of Illinois certified and confirmed the certification of a class similar to that sought in the instant case and expressly held that receiving a TCPA Robocall granted all the recipients standing to assert and be a member of a class seeking statutory damages for the Robocalls. Aranda v. Caribbean Cruise Line, Inc., 2016 U.S. Dist. LEXIS 111828 * 19-23 (N.D. Ill. August 23, 2016).
In confirming a TCPA class of Robocalled Americans, The United States District Court for the Northern District of Illinois wrote:
“[The TCPA] directly forbids activities that by their nature infringe the privacy-related interests that Congress sought to protect by enacting the TCPA. There is no gap – – there are not some kinds of violations of section 227 which do not result in the harm Congress intended to curb namely the receipt of unsolicited telemarketing calls that by their nature invade the privacy and disturb the solitude of their recipient. [. . .] Both history and the judgment of Congress suggest that violation of this substantive right is sufficient to constitute a concrete de facto injury. As other courts have observed, American and English courts have long heard cases in which plaintiffs alleged that defendants affirmatively directed their conduct at plaintiffs to invade their privacy and disturb their solitude.”
Aranda v. Caribbean Cruise Line, Inc., 2016 U.S. Dist. LEXIS 111828 * 19, 20(N.D. Ill. August 23, 2016)(citations omitted).
The United States District Court for the Middle District of North Carolina, denied a motion to decertify a class and declared that telephone calls which violate the TCPA in themselves establish the injury or invasion of interest which grants plaintiffs standing. Krakauer v. Dish Network, LLC, 168 F.Supp.3d 8433, 845 (M.D. N.C. 2016).
In confirming all recipients of TCPA violating calls had standing, whether they answered or heard the telephone ring or not, the United States District Court for the Middle District of North Carolina declared:
“While class members did not necessarily pick up or hear ringing [for] every call at issue in this case, each call created, at a minimum, a risk of an invasion of a class member’s privacy. Spokeo clarified that “risk of real harm” was enough to show concrete injury. [. . .] Post-Spokeo cases have consistently concluded that calls that violate the TCPA establish concrete injuries.”
Krakauer v. Dish Network, LLC, 168 F.Supp.3d 8433, 845 (M.D. N.C. 2016).
On January 30, 2017, the United States Court of Appeals for the Ninth Circuit joined the other federal courts and held that a TCPA violating call almost automatically provides the concrete and particularized damages which are required for standing pursuant to Spokeo. Van Patten v. Vertical Fitness Group, LLC, 2017 U.S. App. 1591 * pages 11-12 (9th Cir. January 30, 2017).
“Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients. A plaintiff alleging a violation under the TCPA need not allege any additional harm beyond the one Congress has identified.”
Van Patten, 2017 U.S. App. 1591 * page 12 (citations and quotation marks omitted); accord Collins v. Travel Entertainment And Marketing, LLC, 2017 U.S. Dist. LEXIS 3255 * pages 7-8 (N.D. Ill. January 10, 2017).
Finally, for cases removed from state court to federal court, a Spokeo or standing motion is not outcome determinative and only results in the remand of this removed case back to the state court. If Defendants are correct, then, the District
Court lacks subject matter jurisdiction and the case must be remanded back to state court. See Hughes v. City of Cedar Rapids, Iowa, 840 F.3d 987, 993 (8th Cir. 2016)(“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”); May v. Consumer Adjustment Co., 2017 U.S. Dist. 7401 * 11-12 (E.D.Mo. January 19, 2017).
In conclusion Spokeo and the new standing requirement expressed in Spokeo have not become an impediment to TCPA claimants.