Whether the placement of a phone call in violation of the Telephone Consumer Protection Act (the "TCPA") is, without further allegation or showing of injury, sufficient to show an Article III concrete injury under Spokeo, Inc. v. Robins.1
Plaintiff Thomas Krakauer filed a putative class action suit against DISH Network in 2011, seeking statutory damages for phone calls allegedly placed to him and approximately 18,000 others in violation of the TCPA. Krakauer sought to certify a class of all those whose numbers were listed on the Do-Not-Call Registry, and who received telemarketing calls from Satellite Systems Network promoting DISH satellite services between May 1, 2010 and August 1, 2011.
DISH contested certification on several grounds, including a lack of standing under Article III and Spokeo. DISH argued that the plaintiff class was defined on the basis of a "bare statutory violation," and that the class had been certified without showing that any class members had personally received or heard the violative phone calls. DISH asserted that under Spokeo, a bare statutory violation is not always enough to establish standing, and that in this case plaintiffs relied exclusively on a statutory violation for standing.
Both the district court and the Fourth Circuit disagreed with DISH.2 The Fourth Circuit held that every class member certified by the district court had Article III standing because the class definition "hewed tightly to the language of the TCPA's cause of action, and that statute itself recognizes a cognizable constitutional injury."3 The Fourth Circuit found that a violation of the TCPA could constitute a concrete injury under Spokeo because the Act protects an individual's particular and concrete privacy interest against receiving multiple unwanted calls to their residential phone number. The court then analogized the TCPA to the protections against invasion of personal privacy recognized in tort law. Further, the court disagreed with DISH's argument that an injury had to rise to a level that would support a common law cause of action in order to meet Spokeo's "concrete injury" requirement, stating that this sort of "judicial grafting" was not what Spokeo intended. Quoting Spokeo, the court stated, "Congress is empowered to 'elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law,'" which is what the court found Congress had done in the TCPA.4
DISH sought certiorari solely on the question of whether a bare violation of the TCPA is sufficiently concrete to establish an injury-in-fact. In its petition, DISH requested that the Supreme Court address the "radically conflicting approaches" in the lower courts to interpreting Spokeo.5 The Supreme Court, however, declined to review the Fourth Circuit's decision.
Thoughts & Takeaways
The Supreme Court's denial of certiorari leaves in place a circuit split on the proper interpretation of the TCPA, as well as more broadly on the issue of what constitutes a sufficient injury for standing. While the Eleventh Circuit has held that a TCPA violation is not by itself sufficient for concrete injury, the Second, Third, Ninth, and now Fourth Circuits have all found that it is. This question also affects a broader set of issues, including the kind and degree of evidence that is required to show injury.
This split is of particular importance to class actions because it affects various aspects of class certification under Rule 23(b), and affects the burden of proof that will be imposed on plaintiffs attempting to bring class actions based on statutory injuries. In this case, for example, the issue of standing was closely tied to the question of certification for Krakauer's putative class and particularly the Rule 23(b) issues of whether the class was ascertainable and whether common questions predominated over individual issues. DISH challenged the sufficiency of plaintiff's evidence showing that the class was ascertainable, arguing that the plaintiff needed to show which class members actually received the violative phone calls. The circuit court, however, declined to require such specific evidence based on its definition of an injury under the TCPA, and its finding that a statutory TCPA violation was sufficient injury to support standing.
Read the petition for certiorari here.
1. 136 S. Ct. 1540 (2016).
2. Petition for a Writ of Certiorari, DISH Network L.L.C. v. Krakauer, No. 19-496, 7-12 (U.S. Oct. 15, 2019).
3. Krakauer v. DISH Network, L.L.C., 925 F.3d 643, 652 (4th Cir. 2019), cert denied, — S.Ct. —, 2019 WL 6833425 (U.S. Dec. 16, 2019).
4. Id. at 654 (citation omitted).
5. Petition for a Writ of Certiorari, supra note 2, at 12-13.
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