Wednesday, September 21, 2016

FYI: ND Cal Holds Numerous Unwanted Calls Required for TCPA Standing

The U.S. District Court for the Northern District of California recently held that an individual had Article III standing to bring a federal Telephone Consumer Protection Act (“TCPA”) claim against a bank because the individual sufficiently alleged a concrete and particularized injury.

However, the Court warned that not just any alleged violation of the TCPA will necessarily give rise to Article III standing.  The Court found persuasive the allegations here that the bank supposedly made voluminous calls to the individual even after the individual supposedly requested the bank to stop calling him because he was not the debtor. 

A copy of the opinion is available at:  Link to Opinion

The plaintiff alleged that during a twelve day period the defendant bank called him at least 42 times on his cellular phone using an autodialer and/or an artificial or prerecorded voice in an attempt to collect a consumer debt.  He alleged that he received at least 3 calls a day during this time period and provided a chart detailing the date and time of the calls.

Furthermore, the plaintiff alleged that he did not give the bank prior written consent to make these calls and repeatedly requested that the bank stop calling, informing the bank that he was not the individual it was attempting to contact.  Prior to receiving these calls, he allegedly never had any contact with the bank and did not provide them with his phone number.

The individual filed a putative class action under the TCPA and the Rosenthal Act, a California statute paralleling the federal Fair Debt Collection Practices Act.  The bank moved to dismiss and to strike the complaint arguing that the individual failed to allege standing, failed to state a claim, and used improper fail safe class definitions.

The U.S. District Court for the Northern District of California first addressed the issue of Article III standing under the recent Supreme Court of the United States ruling Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). 

As you may recall, to establish standing under Spokeo, a plaintiff bringing a statutory violation must still allege a concrete and particularized injury.  The bank argued that the plaintiff merely alleged a procedural violation without concrete harm or injury, while the individual argued that the phone calls were harm in the form of involuntary telephone and electrical charges, aggravation, nuisance, and invasion of privacy. 

The Court noted that district courts have not reached a consensus on whether a plaintiff's allegations that she received annoying and unwanted phone calls in violation of the TCPA is sufficient to establish Article III standing since Spokeo was decided.  Some courts found that allegations of an autodialing system to call thousands of phone numbers to promote its products was in it of itself a concrete injury under the TCPA because the allegations required plaintiffs to waste time answering or otherwise addressing the calls, and because the calls made the phones unavailable for other calls. 

In contrast, the Court here noted, other courts have found that a plaintiff who alleged voluminous  phone calls from a debt collector could not establish standing under the TCPA because she could not show that any individual phone call had caused sufficient lost time, aggravation, and distress to constitute a concrete injury.

After weighing these contradictory opinions, the Court held that the present individual had pled sufficient facts to show that the unwanted calls he received were an annoyance that caused him to waste time. 

However, the Court warned that any alleged violation of the TCPA will not necessarily give rise to Article III standing.  The Court cited calls made to a neglected phone that go unnoticed or calls that are dropped before they connect as an example of allegations that may violate the TCPA but not cause any concrete injury.

The plaintiff here alleged that he received at least 42 unwanted and unsolicited phone calls from the bank, getting multiple calls a day.  Furthermore, the plaintiff here alleged that he repeatedly requested that the bank stop calling, supposedly informing the bank that he was not the individual they were attempting to contact, but that the bank continued calling.  The Court found these allegations, if proven true, to show that the individual wasted his own time and energy dealing with the unwanted phone calls.

The Court explained that even a single phone call can cause lost time, annoyance, and frustration -- but especially so where the recipient receives repeated, regular phone calls from the same number and asks the caller to stop, but due to the call pattern, nevertheless worries about and anticipates additional calls.

Accordingly, the Court held that the plaintiff’s allegations that he received numerous and repeated unwanted calls that caused him aggravation, nuisance, and an invasion of privacy, even after he supposedly asked that the calls be stopped, was sufficient to allege a concrete and particularized injury that establishes Article III standing under Spokeo.

Next, the Court addressed the individual’s standing to sue under the Rosenthal Act.  The Rosenthal Act defines "debtor" as "a natural person from whom a debt collector seeks to collect a consumer debt that is due or owing or alleged to be due and owing from such person." Cal. Civ. Code § 1788.2.  The bank argued that the plaintiff could not bring suit under the Rosenthal Act because only the actual debtor could bring a claim under the Rosenthal Act.

However, the Court disagreed.  The Court noted that the plaintiff alleged that he asked the bank to stop calling him and that he was not the individual they were attempting to contact.  However, the bank allegedly continued to contact the individual seeking to collect a debt.  Consequently, under these allegations, the Court determined that whether or not the individual was the debtor was in dispute and consequently the plaintiff had standing to bring a claim under the Rosenthal Act.

Relatedly, the Court analyzed whether the individual failed to state a claim under the Rosenthal Act.  The plaintiff brought his claim under sections 1788.11 (d) and (e) which prohibit a debt collector from causing a telephone to "ring repeatedly or continuously to annoy" and from communicating with a debtor with "such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances." Cal. Code §§ 1788.11 (d) and (e).

The Court disagreed with the bank’s argument that the individual failed to state a claim under the Rosenthal Act because he alleged only that he received a large number of calls and made no allegations regarding the content of any call.  To the contrary, the Court noted that the plaintiff not only alleged that there was a large volume of calls, but that the individual alleged a pattern of calls and alleged that he informed the bank to stop calling him because he was not the individual they were attempting to contact. 

The Court was satisfied that these allegations constituted harassing behavior under the Rosenthal Act.  Consequently, the individual’s allegations stated a potential claim under this California statute. 

Last, the Court denied the bank’s motion to strike the class definition because it was premature.  The Court reasoned that these issues are best addressed through a class certification motion after some discovery has been conducted. 

Thus, the Court denied both the bank’s motion to dismiss and the motion to strike. 



Eric Tsai
Maurice Wutscher LLP
 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Sunday, September 18, 2016

FYI: Cal App Ct Denies Appeal for Preliminary Injunction Attorney's Fees in Cal HOBR Case

The Court of Appeal of the State of California, Third Appellate District, recently held that an order denying interim attorney fees under Cal. Civil Code § 2924.12, which is part of the California Homeowner Bill of Rights, is not an appealable order.

A copy of the opinion is available at:  Link to Opinion

The plaintiff borrower obtained a mortgage loan, which was subsequently modified, but the plaintiff defaulted on the modified loan also. The defendant mortgagee recorded its notice of default. The plaintiff borrower requested another modification but did not submit the required documentation. The property was set for foreclosure sale.

The plaintiff borrower filed a complaint against the defendant mortgagee alleging a violation of the California Homeowner Bill of Rights (CHOBR) as the mortgagee supposedly recorded its notice of notice of sale while a loan modification was pending.  The plaintiff presented evidence that indicated the defendant issued the notice of trustee's sale before it issued any determination of the plaintiff's eligibility of a loan modification.

The plaintiff also applied for a temporary restraining order, which the trial court granted.  The plaintiff then applied for a preliminary injunction to enjoin the sale of the property. The trial court granted the injunction as it found the plaintiff borrower met his burden to demonstrate a likelihood of success on the merits and he would suffer great injury if his property was sold at the foreclosure sale. The injunction was to remain in place until the defendant corrected and remedied the allegations.

As the preliminary injunction was in place, the plaintiff moved for attorney fees as the prevailing party. The trial court denied the request for interim attorney fees and the plaintiff appealed the order.

On appeal, the mortgagee argued the trial court's order denying the borrower's motion for interim attorney fees under the CHOBR was not an appealable order.

As you may recall, under California's 'one final judgment' rule, a judgment that fails to dispose of all the causes of action pending between the parties is generally not appealable. A final judgment terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined. A recognized exception to the 'one final judgment' rule is that an interim order is appealable if:  (1) the order is collateral to the subject matter of the litigation,  (2) the order is final as to the collateral matter, and  (3) the order directs the payment of money by the appellant or the performance of an act by or against appellant.

Here, the Appellate Court noted that the plaintiff's notice of appeal was filed before a final judgment, and that a trial on the merits might show that the preliminary injunction was improper.

The Appellate Court also found that the trial court's order denying interim attorney fees is also not appealable as a collateral order. The Appellate Court noted that the trial court's order did not direct the payment of any money, nor did it compel an act by or against the plaintiff. Instead, the Appellate Court noted, the trial court's order merely represents a denial of attorney's fees that is not appealable as a collateral order.

The Appellate Court rejected the plaintiff's reliance on Moore v. Shaw (2004) 116 Cal.App.4th 182.  The Court noted that, in Doe v. Luster (2006) 145 Cal.App.4th 139, the same appellate court that rendered the decision in Moore v. Shaw "considered its earlier decision in Moore and held Moore should not be construed to allow an appeal from an interim attorney fee award."  The Appellate Court noted that Moore did not address the issue of whether an order denying the request for attorney fees was appealable, and thus was not applicable to the case at hand.

The Court also rejected the plaintiff's reliance on Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265.  The Appellate Court noted that "Baharian–Mehr did not consider whether an attorney fee order is appealable by itself. (Ibid.) Thus, Baharian–Mehr does not undermine our conclusion that the order denying interim attorney fees in this case does not constitute an appealable order.".

Accordingly, the Court of Appeal dismissed the appeal.


Eric Tsai
Maurice Wutscher LLP
 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Monday, August 29, 2016

FYI: ND Cal Holds Alleged "Invasion of Privacy" Sufficient for TCPA Standing

The U.S. District Court for the Northern District of California recently held that a mobile phone app designed to send messages to a phone user's contacts did not violate the federal Telephone Consumer Protection Act ("TCPA"), because the phone user selected the message recipients and had to take several affirmative steps for the app to send the unwanted messages.

In so ruling, the Court also held that the plaintiff had Article III standing because his TCPA claim did not simply allege a procedural violation, and instead alleged that he suffered concrete harm because the mobile app provider supposedly invaded his privacy

A copy of the opinion is available here:  Link to Opinion

A phone user received an allegedly unwanted text message with a hyperlink.  The defendant company sent the message to advertise its mobile app.  The phone user alleged he had never been a user of the app nor downloaded the app onto any device.

The app allows users to communicate with and see the location of the contacts in their phone.  The app requires users to download it on their phone.  After downloading the app and creating an account, users are asked, "Want to see others on your map?"  Users who click the "Yes" button are asked permission for the company to access their contacts.  Users who allow permission are then brought to a screen to "Add Member[s]," with certain "Recommended" members selected through an algorithm. 

Each "Recommended" contact appears with a checkmark next to it.  An "Invite" button showing the number of selected invitations is at the bottom of this screen.  The app does not inform users how or when invitations will be sent.  The app states that it has full control over the content of the text message and when it will send the message, if the app sends it at all.

The phone user brought a class action complaint alleging violations of the TCPA and the California unfair competition law.  The mobile application company moved to dismiss both claims. 

As a preliminary matter, the District Court determined that the phone user sufficiently alleged that he suffered a concrete injury and consequently had standing to bring the case. 

As you may recall, Article III standing requires that a plaintiff "have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The "injury in fact must be both concrete and particularized." Id. at 1548. The Supreme Court recently made clear that, "Article III standing requires a concrete injury even in the context of a statutory violation," and a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Id. at 1549. That is, a plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id.

The Court reasoned that the phone user supposedly suffered a necessary concrete injury because he alleged an invasion of privacy.

The Court also rejected the defendant's efforts to distinguish two other court rulings allowing TCPA standing on grounds that the alleged conduct in the other cases was more pervasive than here.  The Court explained that "such distinctions go only to the extent of the injury, not whether there was a concrete injury at all."

The Court then turned to the merits of the TCPA claim.  The Court noted the established rule that a text message is a "call" under the TCPA.  The relevant TCPA section makes it unlawful to "to make any call… 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)(iii).  

The Court noted that the determination of liability depended on whether the mobile app company "made" the unwanted call or used an "automatic telephone dialing system" as intended by the TCPA.   In making this determination, the Court relied on the Federal Communications Commission's ("FCC") analysis in In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961. 

The FCC explained who "makes" a call by distinguishing the practices of two mobile application companies.  According to the FCC, one company "made" a call under the TCPA by designing a mostly automated app that sent invitational texts of its own choosing to every contact in the app user's contact list with little or no input by the phone user. 

The other company did not "make" a call under the TCPA because it designed a user-action based app that required the phone user to: 1) tap a button that invites contacts to use the app; 2) determine whether to invite all contacts or individually select contacts; and 3) choose to send the invitational text message by tapping another button. 

Put differently, the FCC concluded that the phone user's affirmative steps stripped the user-action based app company from the status of "maker" of the call under the TCPA.  This held true even if the app still controlled the content of the text message.

The District Court here followed the FCC's analysis and determined that the defendant mobile application company did not "make" a call because its app required affirmative steps by phone users, namely granting the app access to their contacts, selecting the invitees, and tapping an additional invite button.   It was immaterial, for the purposes of who "makes" a call under the TCPA, whether an app informs the user how invitations will be sent. 

The Court stated that the goal of the TCPA is to prevent an invasion of privacy and the person who chooses to send an unwanted invitation is responsible for the invasion regardless of the form of the invitation.  The app's "recommended" invitee feature was not material to the result because the phone user must first take the affirmative step to share contacts with the app and then has the option to deselect "recommended" invitees.  For added measure, the Court noted, the phone user must press the "Invite" button after selecting invitees.

As to the California unfair competition law claim, the plaintiff phone user conceded that the California statutory claim required a violation of the TCPA.  Accordingly, the Court summarily dismissed the state claim. 

Accordingly, the District Court dismissed the phone user's entire complaint with prejudice.


Eric Tsai
Maurice Wutscher LLP
 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Monday, August 22, 2016

FYI: Cal App Ct (2nd Dist) Rejects Claim That Post-Dated Checks Were Undisclosed "Deferred Downpayments"

The Court of Appeal of the State of California, Second District, recently held that the California Rees-Levering Motor Vehicle Sales and Finance Act, Calif. Civil Code, § 2981, et seq. ("Rees-Levering Act") does not require a post-dated check provided at the time of sale to be categorized as a "deferred down payment" on the sales contract.

A copy of the opinion is available at:  Link to Opinion

The plaintiff purchased a car from the defendant car dealer using three checks as down payment.  Two of the checks were dated the day after the contract was signed, and one check was dated about two weeks later.

The car dealer entered the three check down payment on the line of the sales contract describing it as a down payment as opposed to a deferred down payment. The car dealer informally agreed to briefly hold the checks as a favor to the plaintiff. 

After several months of owning the car, the plaintiff sought to rescind the contract based on violations of the Rees-Levering Act. The court ruled in favor of the car dealer and auto finance company and the plaintiff appealed.   

The plaintiff argued that the car dealer's failed to disclose a deferred down payment in supposed violation of the Rees-Levering Act, as some or all of the checks were agreed to be held until a later date.  See § 2983 (a)(6)(D) and (c).  In addition, the plaintiff argued if the court were to conclude that a held check is different from a deferred down payment, there would be a violation of the Rees-Levering Act because the agreement to hold the checks would supposedly violate the single document rule.  See Section 2981.9.

As you may recall, section 2981 of the Rees-Levering Act defines "down payment" as "a payment that the buyer pays or agrees to pay to the seller in the cash or property value or money's worth at or prior to delivery by the seller to the buyer of the motor vehicle described in the conditional sale contract."  See Section 2981. 

The term "down payments" also includes "the amount of any portion of the down payment the payment of which is deferred until not later than the due date of the second otherwise scheduled payment, if the amount of the deferred down payment is not subject to a finance charge. The term does not include any administrative finance charge charged, received or collected by the seller as provided in this chapter." (§ 2981, subd. (f).)

Section 2982(a)(6)(D) requires disclosure for deferred down payment, and 2982(c) requires that the deferred down payment schedule be disclosed as required under the federal Truth In Lending Act. 

Here, the plaintiff's monthly payments were set to begin after the date on the post-dated check.  None of the checks were deferred to a later due date than the second scheduled payment.  Therefore, the Appellate Court held, the held checks fell under the definition of down payment in section 2981(f).  The Court also noted that the plaintiff did not provide any evidence that holding the checks affected any aspects of the purchase transaction -- it did not increase the purchase price, the amount financed, the annual percentage rate, monthly payments, payment schedule or the final payment. 

The Court also noted that the plaintiff made her down payment at the time of the purchase and there was nothing left for her to do after that.  Unlike the car buyers in in two other "deferred down payment" cases in which violations of the Rees-Levering Act were found, the here plaintiff did not make her down payments in installments.  See Rojas v. Platinum Auto Group, 212 Cal. App. 4th 997 (2013) and Munoz v. Express Auto Sales, 222 Cal. App. 4th Supp.1 (2014).  

The plaintiff also relied on Highway Trailer of Cal. Inc. v. Frankel, 250 Cal. App. 2d 733 (1967), in which the court held that a post-dated check that was not accurately represented in a contract should not listed as cash down payment.  

Here, the Appellate Court noted that Highway Trailer of Cal. Inc. relied on an earlier version of the Rees-Levering Act under which deferred payments were not mentioned.  Accordingly, the Appellate Court refused to read Highway Trailer to suggest that a check, as a matter of law, cannot be listed on a contract as a down payment under the Rees-Levering Act. 

After reviewing statutory language, legislative history and case law, the Appellate Court here could not find that a post-dated check must be categorized as deferred down payment under the Rees-Levering Act. 

The plaintiff also argued that the car dealer violated the single document rule in the Rees-Levering Act section 2981.9.  This provision requires all agreements of the buyer and seller with respect to the terms of the payment be disclosed in the contract. 

The plaintiff argued that because the car dealer agreed that one check would be deposited until a later date, and that agreement was not stated in the contract, the contract violated the single document rule.  The Appellate Court disagreed, refusing to rule that an informal agreement to accommodate a customer by not immediately depositing a check constitutes a "term of payment" requiring disclosure under section 2981.9. 

Accordingly, the Appellate Court affirmed the trial court's ruling. 


Eric Tsai
Maurice Wutscher LLP
 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Friday, August 19, 2016

FYI: 9th Cir Rejects FDCPA Claim for Failure to Disclose "Debt Collector" Status in Follow Up Communications

The U.S. Court of Appeals for the Ninth Circuit recently held that there is no federal Fair Debt Collection Practices Act ("FDCPA") violation if a subsequent communication is sufficient to disclose to the least sophisticated debtor that the communication was from a debt collector, even without expressly stating "this communication is from a debt collector."

In reaching the conclusion, the Court gave weight to the extensive communication between the debtor and debt collector, prior to the debt collector's employee leaving a voicemail in which the employee stated he was from the debt collector.

A link to the opinion is available at:  Link to Opinion

In order to qualify for a business credit card, a debtor filled out the application using his spouse's former business.  The debtor used the credit card for personal items and subsequently defaulted on the debt.  The creditor referred the debt to a debt collector. 

The debt collector first contacted the debtor on the telephone.  The debt collector required its employees to identify both the nature of the call and to identify the company as a debt collector.  The debtor did not allege that the debt collector employee failed to communicate this information during its initial contact with the debtor. 

In two telephone calls, the debtor and his wife each referred the debt collector employee to a debt settlement firm.  Over the next few weeks, the debt collector employee communicated exclusively with the debt settlement firm.  The debt collector made multiple attempts to reach the debtor's representative during this time. 

The case was later assigned to a different debt collector employee.  This newly-assigned employee had all remaining relevant contacts with the debtor.  

After failed attempts to reach the debt settlement firm, the debt collector employee emailed the debtor to thank him for a telephone inquiry to settle the debt.  The debtor wrote back and offered to settle the credit card debt for a percentage of the total due.  The debt collector employee wrote that he would provide the information to the creditor. 

The next day, the debt collector employee and the debtor again exchanged emails concerning more details as to settlement.

A few days later, the debtor emailed the debt collector employee about the status of the settlement offer.  The debt collector employee wrote back and explained that there was no update.

A week later, the debt collector employee called the debtor and left the following message: "Hello this is a call for [the debtor] from [the employee] at the [law firm].  Please call sir, it is important, my number is [law firm number].  Thank you."  In the voicemail message, the employee did not state that the company was a debt collector. 

After the voicemail, the debtor and the debt collector employee exchanged eleven additional emails in the span of eight days.  The debt collector employee informed the debtor that his offer had been declined and that the debt collector would move forward with legal action.  The parties still had not reached an agreement almost three months after the initial contact. 

The debt or filed suit alleging that the voicemail did not disclose the debt collector was as a debt collector, in supposed violation of the federal Fair Debt Collection Practices Act ("FDCPA").  The lower court held a bench trial and ruled in favor of the debtor.   The debt collector appealed the ruling.

On appeal, the Ninth Circuit noted that 15 U.S.C. § 1692(e)(11) requires a debt collector to disclose in the initial communication that the debt collector is attempting to collect a debt and any information obtained will be used for that purpose.  The provision also requires that the debt collector must "disclose in subsequent communications that the communication is from a debt collector," with the exception of formal pleadings made in a legal action.

The Court also clarified that any error in a debt collector's communications must be material in order to be actionable under § 1692e of the FDCPA.  The Court recited that mere technical errors that deceive no one do not give rise to liability under the FDCPA.

As you may recall, the "least sophisticated debtor" standard for FDCPA claims assumes a basic level of understanding, but does not include bizarre or idiosyncratic interpretations.  Accordingly, the Court examined whether the voicemail at issue would be sufficient to disclose to the least sophisticated debtor that the call was on behalf of a debt collector. 

The Court noted that prior to the relevant voicemail, the debtor and the debt collector employee had been involved in potential settlement discussions for about a two week period.  The debtor had made a telephone inquiry to the debt collector employee about settlement.  The debt collector employee and the debtor exchanged eight emails in this time period. 

Moreover, the Court gave weight to the fact that, at the time the debt collector employee left the voicemail, the debtor had a pending settlement offer for a percentage of the total due.  The debtor even asked the debt collector employee for a status report as to the settlement offer.   Most importantly for the Court, in the voicemail the debt collector employee identified himself by his first name and stated that he was from the debt collector.

The Ninth Circuit determined that the lengthy communication history and the fact that the debt collector employee identified himself by his first name and stated that he was from the debt collector was sufficient to disclose to the least sophisticated debtor that the communication at issue was from a "debt collector" under 15 U.S.C.§ 1692(e)(11).

The Court noted that any other interpretation of the voicemail at issue would be bizarre or idiosyncratic.  In this context, the Court found that the voicemail was not "false, deceptive, or misleading" under 15 U.S.C.§ 1692(e).

The Court held that § 1692(e)(11) does not require subsequent communications from a debt collector to use any specific language so long as it is sufficient to disclose that the communication is from a debt collector. 

Accordingly, the Ninth Circuit reversed the trial court's ruling. 


Eric Tsai
Maurice Wutscher LLP
 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654
Fax: (866) 581-9302
Mobile: (714) 600-6000
Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon




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Wednesday, August 17, 2016

FYI: SD Cal Holds No Standing For TCPA Plaintiff Alleging 290 Nonconsensual Calls

The U.S. District Court for the Southern District of California recently held that a TCPA plaintiff alleging some 290 unwanted autodialed calls to her call phone did not demonstrate "concrete injury" sufficient to confer Article III standing under Spokeo v. Robins.

A copy of the opinion is attached.

The plaintiff failed to make payments her credit card, and started to receive collection calls. The defendant creditors allegedly called the plaintiff on her cellular telephone over 290 times using an automated telephone dialing system ("ATDS") over the course of six months between July and December 2014.  The plaintiff answered only three of these telephone calls.

The plaintiff alleged that "Defendant's unlawful conduct caused Plaintiff severe and substantial emotional distress, including physical and emotional harm, including but not limited to: anxiety, stress, headaches (requiring ibuprofen, over the counter health aids), back, neck and shoulder pain, sleeping issues (requiring over the counter health aids), anger, embarrassment, humiliation, depression, frustration, shame, lack of concentration, dizziness, weight loss, nervousness and tremors, family and marital problems that required counseling, amongst other injuries and negative emotions." She also testified in her deposition that, as a result of the collection calls, she suffered "nervousness, a lot of tension, problems with my husband, headaches, my neck, and they would go down to my back and I would lose my appetite. I lost weight."

As you may recall, "the 'irreducible constitutional minimum' of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision."  Spokeo v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

The Court recited that "Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.'" Spokeo, 136 S.Ct. at 1547-48.  "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting Lujan, 504 U.S. at 560).

Again citing Spokeo, the Court noted that a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation." Id. at 1549.  A "bare procedural violation, divorced from any concrete harm," does not satisfy the injury-in-fact requirement of Article III. Id.

The Court also noted that "a plaintiff must demonstrate standing for each claim he seeks to press." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). In other words, "standing is not dispensed in gross." Id. (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)).

The Court observed that, because the TCPA provides for a separate statutory $500 damage award for each call that violates its provisions, the plaintiff must establish standing for each violation -- i.e., the plaintiff must have suffered an injury in fact caused by each individual nonconsensual autodialed call to her cell phone.

In other words, "[t]he determination of standing to bring a TCPA claim based on a call made using an ATDS does not change whether it is the only call alleged to have violated the TCPA or 1 of 290 calls that allegedly violated the TCPA," and "the Court must determine whether [p]laintiff has evidence of an injury in fact specific to each individual call, and not in the aggregate based on the total quantity of calls."

The Court explained that "[i]nstead of basing a violation based on the quantity of calls, or creating a private right of action for someone who has received an excessive number of calls over time from the same offender, the TCPA treats every single call as a separate, independent violation, regardless of who made the call, the time of the call, the reason for the call, or whether the recipient was even aware the call was made or aware that it was made with an ATDS."

However, the Court noted, "Congress's finding that the proliferation of unwanted calls from telemarketers causes harm does not mean that the receipt of one telephone call that was dialed using an ATDS results in concrete harm. In other words, regardless of Congress's reasons for enacting the TCPA, one singular call, viewed in isolation and without consideration of the purpose of the call, does not cause any injury that is traceable to the conduct for which the TCPA created a private right of action, namely the use of an ATDS to call a cell phone."

Stated differently, the Court held the fact that Congress created a TCPA private right of action for each nonconsensual call made using an ATDS does not mean "that an individual who receives one call to her cell phone using an ATDS suffers a concrete harm" sufficient to confer Constitutional standing. 

"Under Spokeo, if the defendant's actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a Plaintiff standing. See Spokeo, 136 S.Ct. at 1547-48 ("Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.") (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)." 

In the Court's words, "the mere dialing of a cellular telephone number using an ATDS, even if the call is not heard or answered by the recipient, does not cause an injury to the recipient. That the TCPA allows private suits for such calls does not somehow elevate this non-injury into a concrete injury sufficient to create Article III standing."

Turning to the matter at hand, the Court noted that the plaintiff alleged that the defendants supposedly violated the TCPA over 290 times -- i.e., each time they allegedly called her cell phone using an ATDS after the plaintiff claims she revoked her consent to call her cell phone.

The Court divided the alleged calls into three categories: (1) calls of which the plaintiff was not aware either because her phone did not ring or she did not hear it ring; (2) calls that the plaintiff heard ring on her phone but that she did not answer; and (3) calls that the plaintiff answered and spoke with a representative of the defendants.  After examining the evidence, the Court held that the plaintiff here failed to "demonstrate that any one of [the d]efendants' over 290 alleged violations of the TCPA, considered in isolation, actually caused her a concrete harm."

The Court explained that, "[a]lthough a defendant violates the TCPA by dialing a cell phone with an ATDS, it is possible that the recipient's phone was not turned on or did not ring, that the recipient did not hear the phone ring, or the recipient for whatever reason was unaware that the call occurred. … A plaintiff cannot have suffered an injury in fact as a result of a phone call she did know was made. Moreover, even for the calls Plaintiff heard ring or actually answered, Plaintiff does not offer any evidence of a concrete injury caused by the use of an ATDS, as opposed to a manually dialed call."

Although the plaintiff asserted "lost time, aggravation, and distress," the Court held that the plaintiff failed "to connect any of these claimed injuries in fact with any (or each) specific TCPA violation."

The Court held that a nonconsensual call to a cell phone made using an ATDS "is merely a procedural violation," which when "divorced from any concrete harm," does not satisfy the injury-in-fact requirement of Article III.

Accordingly, the Court held that calls of which the plaintiff was not aware -- "either because her ringer or phone were turned off, or because she did not have her phone with her when the calls occurred" -- did not result in any plausible injuries in fact that could be traceable to the alleged TCPA violation.  "For Plaintiff to have suffered 'lost time, aggravation, and distress,' she must, at the very least, have been aware of the call when it occurred."  Thus, the Court held that the plaintiff did not have standing to sue for any calls of which she was not aware.

As to calls of which the plaintiff was aware but did not answer -- for example, the plaintiff asserted "that she called the number that appeared on her phone and when someone answered on behalf of Defendants, she hung up" -- the Court held that the plaintiff "must demonstrate that she suffered an injury in fact solely as a result of the telephone ringing for that particular call." 

Here, the Court held that "[n]o reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing. When someone owns a cell phone and leaves the ringer on, they necessarily expect the phone to ring occasionally. Viewing each call in isolation, whether the phone rings as a result of a call from a family member, a call from an employer, a manually dialed call from a creditor, or an ATDS dialed call from a creditor, any 'lost time, aggravation, and distress,' are the same. Thus, Defendants' TCPA violation (namely, use of an ATDS to call Plaintiff) could not have caused Plaintiff a concrete injury with respect to any (and each) of the calls that she did not answer."

The Court noted that only two of the 290 calls were actually answered.  Here, the Court held that "Plaintiff does not offer any evidence demonstrating that Defendants' use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA. Therefore, Plaintiff did not suffer an injury in fact traceable to Defendants' violation of the TCPA, and lacks standing to make a claim for any violation attributable to the calls she actually answered."

The Court held that "the specific facts of this case reveal that any harm suffered by Plaintiff is unconnected to the alleged TCPA violations. Defendants here were creditors of Plaintiff and were attempting to collect a debt. They were calling Plaintiff's cell phone because that was the only telephone number she provided them. Although these calls seeking to collect debts may have been stressful, aggravating, and occupied Plaintiff's time, that injury is completely unrelated to Defendants' use of an ATDS to dial her number."

Importantly, the Court also held that the plaintiff "would have been no better off had Defendants dialed her telephone number manually."

"A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court." McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998).

In addition, the fact that "the use of an ATDS may have allowed Defendants to call a greater number of debtors more efficiently did not cause any harm to Plaintiff." See Silha v. ACT, Inc., 807 F.3d 169, 174-75 (7th Cir. 2015) ("[A] plaintiff's claim of injury in fact cannot be based solely on a defendant's gain; it must be based on a plaintiff's loss."). In other words, the Court held, "Plaintiff's alleged concrete harm was divorced from the alleged violation of the TCPA." See Spokeo, 136 S.Ct. at 1549 (holding that "a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III").

Accordingly, the Court held that the plaintiff did not and cannot satisfy the injury-in-fact requirement of Article III, and dismissed the TCPA allegations.


Eric Tsai
Maurice Wutscher LLP
 
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