Recently, the Southern District of California dismissed a
plaintiff's Telephone Consumer Protection Act (TCPA) claim for
lack of standing due to her failure to show a concrete injury for
each individual call that allegedly violated the statute.
The case, Romero v. Department Stores National
Bank, offers a unique interpretation of the recent
U.S. Supreme Court case Spokeo, Inc. v. Robins.
In Spokeo, the Supreme Court held that a plaintiff cannot
sue for mere technical violations of a statute without showing
concrete (tangible or intangible) harm. While Spokeo
involved the Fair Credit Reporting Act, multiple courts, including
the Romero court, have since applied the ruling to the
TCPA. In Romero, the plaintiff failed to make
payments on her Macy's credit card. The defendants tried
to collect on that debt by calling the plaintiff at the only phone
number she gave them, her cell phone number. The plaintiff
alleged that the defendants called her over 290 times using an
automatic telephone dialing system (ATDS) and that the calls caused
her intangible harms such as invasion of privacy, lost time,
aggravation, and distress. She claimed to have answered only
three of the calls. In preparation for trial, the plaintiff
submitted multiple documents to the court; however, none
demonstrated actual damage caused by the phone calls.
The defendants moved to dismiss plaintiff's claims for lack
of standing due to her failure to allege any concrete injuries
caused by the phone calls. Following Spokeo's
reasoning, the Court determined that, in order for the plaintiff to
have constitutional standing, she must show that she suffered an
injury-in-fact that is concrete and particularized. A bare
procedural violation of the TCPA—where the plaintiff did not
suffer any actual harm—would not suffice. Moreover, the
Court determined that plaintiff must establish standing and show
concrete harm for each of the 290 alleged calls.
Analyzing the calls in categories, the Court held that no
individual call could have caused the plaintiff concrete
harm. First, each call that did not make the plaintiff's
phone ring, or that she did not hear ring, did not cause her injury
or establish standing because she wasn't even aware of the call
when it occurred. Second, each unanswered call did not cause
a concrete injury because no reasonable juror could find that one
unanswered telephone call could cause lost time, aggravation,
distress, or any injury sufficient to establish standing.
Viewing the calls individually, the Court noted that a call placed
by an ATDS causes no more harm than a call made by a family member
or a call manually dialed by a creditor, which do not violate the
TCPA. Similarly, each call answered by the plaintiff did not
cause concrete harm simply because an ATDS was used to make the
Romero will come as good news to businesses utilizing
an ATDS to make calls. The opinion significantly narrows a
plaintiff's ability to sue under the TCPA by: (1) requiring
concrete harm for each individual call, rather than all the calls
considered cumulatively; and (2) finding that an autodialed call
causes no more harm than a manually dialed call. To this
point, however, Romero reflects a unique and minority
interpretation of Spokeo. Several other courts have
found intangible injuries similar to those cited by the plaintiff
in Romero to be sufficient to confer standing for a TCPA
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