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Last year, the Supreme Court held that the violation of a statutory right alone does not satisfy the Constitution’s standing requirements absent a particularized and concrete injury, an injury in fact. The Supreme Court’s decision in Spokeo addressed an alleged violation of the Fair Credit Reporting Act (“FCRA”), but Telephone Consumer Protection Act (“TCPA”) defendants had hoped to benefit from the decision’s reasoning. That hope may be fading.
In Van Patten v. Vertical Fitness Group, the Ninth Circuit recently held that a TCPA plaintiff who received just two text messages had suffered an injury in fact. The court found that “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” In distinguishing the TCPA from the FCRA at issue in Spokeo, the Ninth Circuit noted that, by passing the TCPA, Congress intentionally identified and elevated harms associated with the nuisance and
invasion of privacy caused by unsolicited telemarketing calls. Therefore, in the TCPA context, the Ninth Circuit determined that a plaintiff “‘need not allege any additional harm beyond the one Congress has identified.’”
The Supreme Court and other appellate courts have also hinted that a single violation of the TCPA would satisfy standing requirements. In Campbell-Ewald Co. v. Gomez, a Supreme Court TCPA case about mootness, Chief Justice Roberts acknowledged in his dissent that the Court broadly agreed the TPCA plaintiff suffered an injury in fact when he received one unauthorized text message from the defendant. And, in a Seventh Circuit case, Judge Easterbrook noted that “[e]very call uses some of the phone owner’s time and mental energy, both of which are precious.” As dicta, neither of these assertions bind lower courts, but they clearly show that courts may distinguish the standing analysis in Spokeo from their analysis of TCPA claims.
Several U.S. district courts have dismissed TCPA claims based on Spokeo. Last month, a Northern District of California court granted a defendant’s motion to dismiss TCPA claims in Brinker v. Normandin’sbecause the plaintiffs’ injuries, “roughly one call every two months” during 2014, were “too minimal to establish standing.” In short, the court considered the harm caused by “approximately five or six” phone calls over several months, some of which went unanswered, insignificant.
Another California district court case took Spokeo even farther. In Romero v. Dept’ Stores Nat’l Bank, a Southern District of California court found that a plaintiff who received 290 calls over six months could not establish standing. The court held that each call constituted a separate alleged claim and that the plaintiff must individually show a concrete harm for each claim. The plaintiff could not aggregate the lost time, aggravation, and distress across all 290 calls involved in the case.
That said, the district court’s decision in Romero is an outlier and has been appealed. As noted in Brinker, another California district court held that “‘42 calls over the course of 12 days’ established standing,” and other district courts have held that receiving even a single call violating the TCPA is a sufficiently concrete harm to satisfy standing requirements. In Cabiness v. Educ. Fin. Solutions, LLC, for example, the court found that, unlike the FCRA, a violation of the TCPA “inherently presents a ‘risk of real harm,’ even if that harm is ‘difficult to prove or measure.’”
For potential TCPA defendants, it remains too soon to definitively say Spokeo will not offer some protection. Other circuits may disagree with the Ninth Circuit’s approach in Van Patten, and the Supreme Court, as it did in Spokeo, may require the Ninth Circuit to devote more thought to its standing analysis than simply saying the very nature of unsolicited telemarketing calls causes harm.
However, it is clear that a variety of courts have been willing to distinguish the TCPA from the FCRA when considering Spokeo. TCPA defendants may want to continue making standing arguments based on Spokeo, if only to preserve the matter for appeal, but it appears unlikely that the onerous standing standard in Romero will gain widespread acceptance. Even the more reasonable standing requirement described in Brinker would appear incorrect under Van Patten. Nonetheless, TCPA litigants should continue to monitor how courts treat standing requirements in the TCPA context.
If you have any questions about the TCPA or its potential application to your company, please contact the TCPA Attorneys of The CommLaw Group: Seth Williams at firstname.lastname@example.org, Jane Wagner at email@example.com, or Nate Hardy at firstname.lastname@example.org.