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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