By Daniel J. Donnellon and Alex S. Rodger
After the 2016 SCOTUS decision of Spokeo v. Robins (see 136 S. Ct. 1540 (2016)) requiring “concrete injury” to have Article III standing to pursue a claim for a technical violation of the Fair Credit Reporting Act, many defense lawyers handling Telephone Consumer Protection Act (“TCPA”) claims were hopeful that they could use the “concrete injury” test to avoid “technical” violations of the TCPA.
In early January 2017, however, Judge Whittemore of the U.S. District Court for the Middle District of Florida dashed those hopes without citing or distinguishing the Spokeo precedent in Glasser v. Hilton Grand Vacations Co., Case No. 8:16-cv-952-T-27AAS, 2017 WL 34823 (M.D. Fla. Jan. 3, 2017). The ruling confirmed that nuisance and invasion of privacy claims are, in fact, concrete injuries for constitutional standing purposes to bring claims for violation of the TCPA.
In Glasser v. Hilton, plaintiff Melanie Glasser alleged that, in February 2016, Hilton Grand Vacations Co., LLC used an automated telephone dialing system to place automated or prerecorded telemarketing calls to her cellular phone promoting its vacation packages and timeshares. Despite signing an agreement with affiliate HHonors Worldwide, LLC to become a member of the HHonors program, Glasser alleged that the robocalls were without her express written consent and, therefore, in violation of the TCPA.
She alleged these automated calls “invaded her privacy by wasting her time” and “diminished the battery life” on her mobile device. She brought a class action on behalf of herself and all others similarly situated. Using rationale adopted by SCOTUS in Spokeo, Hilton moved to dismiss the complaint, among other reasons, because the plaintiff failed to allege a “concrete and particularized injury,” and merely claimed a technical violation of the TCPA.
The Spokeo Rationale Requires a Court to Find “Concrete” and “Particularized” Injury
To provide some background, Justice Alito, writing for the majority in Spokeo, found that for an injury to be sufficient to confer Constitutional standing, it must be “particularized” and “concrete”. See Spokeo, 136 S. Ct. at syllabus. For the injury to be “particularized,” it “must affect the plaintiff in a personal and individual way”. Ssee id. at 1548.
In Spokeo, the Court found Robins, who claimed technical errors in his credit report, sufficiently alleged a personal or particularized injury. Justice Alito further wrote, however, that the Ninth Circuit had not determined whether the injury was “concrete.” The Court remanded for consideration of whether the alleged technical violations caused a “‘real’ and not ‘abstract’” injury. See id. at 1548, 1550. Despite the remand, many plaintiff class action attorneys tout Spokeo as a victory because the Court had the opportunity to dismiss entirely on standing grounds and chose not to address the “concreteness” of the alleged FCRA violations. At least one district court, however, has applied Spokeo in dismissing a TCPA claim for receipt of six junk faxes as the complaint did not explain any alleged “damages” suffered, and an injury must be “concrete” even in the context of a statutory violation. See Kostmayer Const., LLC v. Port Pipe & Tube, Inc., 2016 U.S. Dist. LEXIS 145947 (W.D. La. Oct. 19, 2016).
Hilton Grand Case Outcome
The District Court in Hilton Grand did not discuss the class plaintiff’s alleged injuries in the terms of being “particularized and concrete.” The district court provided a short, but thorough, description of the purpose of the TCPA as a predicate to its finding of concrete and particularized injury:
The TCPA was enacted by Congress in response to evidence ‘that automated or prerecorded calls are a nuisance and an invasion of privacy.’ Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1117 (11th Cir. 2014) (quoting TCPA §2(9), (13), 105 Stat. at 2394, 2395). The TCPA prohibits any person from ‘mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.’ 47 U.S.C. § 227(b)(1)(A). ‘To state the obvious, auto-dialed calls negatively affect residential privacy regardless of whether the called party pays for the call.’ Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1258 (11th Cir. 2014).
Glasser, 2017 WL 34823, at *2.
The Court further found that her allegations of invasion of privacy and diminished “battery life” (and apparently an allegation that her carrier charged her for incoming calls) were sufficient to establish Article III standing even if she never even answered the unwanted calls.
The Court did not address or attempt to distinguish Spokeo, which was brought, albeit, under a different consumer protection statutory scheme. These very generalized allegations of invasion of privacy and diminished battery life were apparently enough to establish a particularized and concrete injury.
There are likely to be many other courts to address these issues of TCPA standing. Class actions continue to be filed proposing enormous recoveries based on minor marketing campaigns, initiated with the best of intentions, that utilize an automated dialing system to reach consumers who may not have provided express written consent. Circuit courts of appeals, and even the Supreme Court, may need to clarify exactly how these business-crippling suits comport with the laudable intentions of the TCPA to squash the proverbial gnats that are robocalls.
As we have previously discussed, even a handful of automated calls to hundreds of class members at $500 per call can reach millions in potential risk. The best thing to do when faced with a potential TCPA suit – either single plaintiff or class action – is to promptly retain the services of an experienced TCPA defense lawyer.
Daniel J. Donnellon and Alex S. Rodger are Cincinnati attorneys with Bingham Greenebaum Doll LLP experienced in defending TCPA class actions and advising companies on TCPA compliance. Mr. Donnellon can be contacted at firstname.lastname@example.org, and Mr. Rodger can be contacted at email@example.com.