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
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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