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 call.
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 lawsuit.
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