U.S. District Judge Cathy A. Bencivengo recently dismissed a
plaintiff's TCPA putative class claim due to lack of standing
required under Article III. In AntonEwing v.
SQM US, Inc. et al., No. 3:16-cv-1609-CAB-JLB (S.D. Cal.,
Sept. 29, 2016), the plaintiff alleged that he received a single
survey call made by SQM on Blue Shield's behalf via an
automated telephone dialing system without his consent. In
addition to his individual claim, the plaintiff sought class
certification for individuals similarly situated within four years
prior to the filing of the complaint.
The claims in this case are important to companies similarly
situated to Blue Shield and SQM because opportunistic litigants
seek recovery without injury. The decision applied
Spokeo's requirement for a plaintiff to establish
"concrete harm" in order to maintain Article III standing
to assert a TCPA claim. Earlier this year, Spokeo
clarified the Article III standing requirement, finding that a bare
procedural violation is not enough to confer standing
without a direct link to a concrete injury.
The Ewing court reasoned that the plaintiff's bare
procedural violation—i.e., that he "incurred a specific
charge for Defendant's call to his cellular
telephone"—was not an injury traceable to the
defendants' alleged usage of an ATDS in violation of the TCPA,
and therefore the plaintiff lacked standing. The decision
further demonstrated the split of opinion at the federal district
court level regarding how Spokeo applies to TCPA
Even with the Ewing court's decision, corporations
that regularly communicate with their customers via outbound calls,
either directly or through third-party vendors, must remain
steadfast in implementing and executing their compliance programs.
Until there is a uniform national application of
Spokeo to TCPA claims, corporations and their respective
counsel should carefully evaluate judicial application of
Spokeo within the scope of their business
Troutman Sanders LLP has unique industry-leading expertise with
the TCPA, with experience gained trying TCPA cases to verdict and
advising Fortune 50 companies regarding their compliance
strategies. We will continue to monitor regulatory and
judicial interpretation of the TCPA in order to identify and advise
on potential risks.
The Troutman Sanders' Consumer Financial Services
Law Monitor blog offers timely updates regarding the financial
services industry to inform you of recent changes in the law,
upcoming regulatory deadlines and significant judicial opinions
that may impact your business. To view the blog, click
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Litigation involving claims of unfair or deceptive business practices under Chapter 93A of the Massachusetts General Laws is constantly evolving, and these claims remain a favourite for the plaintiffs' bar...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).