United States: Recent TCPA Rulings Highlight Controversy Following Supreme Court's Spokeo Decision

Reminiscent of the fable of the Elephant and the Blind Men, the United States Supreme Court's splendidly opaque May 16, 2016 decision in Spokeo v. Robins has left counsel for both plaintiffs and defendants arguing that the decision supports their view of the requirement of "concrete and particularized" injury necessary to support Article III standing in Federal courts. Nowhere have these arguments become more crystalized than in class action litigation regarding robocalls brought under the Telephone Consumer Protection Act ("TCPA"). The TCPA restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment, and provides for a private right of action on behalf of certain recipients of unwanted solicitations. Because of recent splits within the various circuits on the standing question, all based upon interpretations of the Spokeo decision, it is possible that the Supreme Court may next interpret Spokeo within the TCPA context.

In Spokeo (a case involving an alleged technical violation of the Fair Credit Reporting Act), the Supreme Court addressed whether injury in fact standing back was present. Instead of deciding the issue, the Court sent the matter back to the Ninth Circuit Court of Appeals for determination whether the injuries alleged were sufficiently "concrete" and "particularized" in nature to support standing for the plaintiff in federal court. While providing general guidance to the Ninth Circuit based upon decades of jurisprudence, the Supreme Court did not rule on the existence of Article III standing as to plaintiff Robins under his specific fact pattern.  

TCPA class action defendants have since argued that under Spokeo, the typical claimed violation of the TCPA – alleging nothing more than the receipt of an improper call - are bare procedural violations, divorced from any concrete harm, and insufficient to establish the "concrete" and "particularized" injury necessary to establish Title III standing. These arguments have gained substantial traction in certain courts. See, for example, Susinno v. Work Out World, 2016 U.S. Dist. LEXIS 113664 (U.S.D.C. New Jersey, August 1, 2016); Etzel v. Hooters of America, 1:15-cv-01055 (U.S.D.C. N.D. Georgia).

At the same time, the plaintiffs' bar has argued that violations are violations of procedural rights made legally cognizable by Congress, and implicating clear privacy rights in seclusion, recognizable as "concrete" and "particularized" injury under Spokeo. Some courts have accepted that view. See, for example, Mey v. Got Warranty, Inc. 5:15-cv-101 (USDC N.D. West Virginia); Rogers v. Capital One Bank (USA), N.A., 2016 WL 3292838 (N.D. GA June 7, 2016).

A study of the stark differences in the interpretation of Spokeo can be demonstrated by juxtaposing the recent rulings in the TCPA context in Susinno v. Work Out World versus that in Mey v. Got Warranty, Inc. In Sussino, Judge Peter Sheridan of the District of New Jersey granted defendant's FRCP 12(b)(1) motion to dismiss, agreeing that the allegations regarding the robocall were trivial and a "bare procedural violation, divorced from any concrete harm." The Court rejected plaintiff's invasion of privacy arguments, as well as allegations of lost cell phone minutes and electricity as "superficial and abstract" complaints as opposed to actual injuries and concrete harm necessary to establish Title III standing.

Directly contradicting this interpretation of Spokeo, U.S. District Judge John Preston Bailey in the District of West Virginia issued a lengthy June 30, 2016 opinion finding Article III standing on numerous grounds in a factually parallel TCPA case. Citing Spokeo regarding intangible injuries that have "a close relationship to a harm that has been traditionally been regarded as providing a basis for lawsuit in English or American courts" (Spokeo at 1549), the Court denied defendant's 12(b)(1) motion to dismiss. The opinion stressed that the robocalls at issue intrude on seclusion and privacy interests protected by the Fourth Amendment (citing Winston v. Lee, 470 U.S. 753, 758 (1985), which characterized the Fourth Amendment as protecting expectations of privacy, "the most comprehensive of rights and the right most valued by civilized men"). Citing additional language in Spokeo that Congress "may elevate to the status of legally cognizable injuries concrete, defacto injuries that were previously inadequate at law," (Spokeo at 1549, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992)), the Court rejected the defense arguments that plaintiff's allegations were insufficient to confer Title III standing.

The contradictory decisions applying Spokeo to TCPA litigation are multiplying rapidly and wildly divergent. Again, as with the blind men describing the elephant, plaintiffs and defense counsel have each seized on a distinct portion of the Spokeo ruling and declared their view a universal truth. But that does not necessarily mean that another person's opinion of Spokeo is universally false. As the sage in the fable stated, "All of you are right. The reason every one of you is telling it differently because each one of you touched the different part of the elephant. So, actually the elephant has all those features what you all said." Given the divergent nature of the opinions interpreting standing under the TCPA pursuant to Spokeo, it may well be that clarification from the Supreme Court is necessary and likely. Until then, legal experts and elephantophiles everywhere can join in the argument of how to interpret Article III standing in TCPA actions under Spokeo, championing their favorite portions of the opinion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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