On April 14, the plaintiffs in Brinker v. Normandin’s, a California class action, got a second chance to pursue their TCPA claims against a car dealership and its advertiser. Though a ruling earlier this year dismissed the plaintiffs’ claims for lack of standing, the court reversed that decision based on a subsequent opinion from the Ninth Circuit.
The lawsuit, which alleged that the plaintiffs received unwanted automated telephone calls from defendants, did not allege any damages other than statutory damages under the TCPA. Based on the U.S. Supreme Court’s 2016 ruling in Spokeo v. Robins, which held that plaintiffs must allege a “concrete harm” to bring statutory privacy claims, the Northern District of California dismissed the plaintiffs’ action in February for lack of Article III standing.
The Brinker plaintiffs moved for reconsideration in light of the Ninth Circuit’s ruling in Van Patten v. Vertical Fitness Group, which was issued after briefing on their own motion had closed. The Van Patten court held that a plaintiff who allegedly received unwanted marketing texts without incurring any other financial damages did indeed suffer a concrete injury, establishing Article III standing.
The court agreed and changed its position according to the Van Patten holding, noting that their claims that defendants “placed unsolicited, automated calls to their phones in violation of the TCPA…are sufficient to show that the plaintiffs suffered a concrete injury” despite the fact that the only impact the plaintiffs alleged was that they felt annoyed and “harassed’ by the calls.
The court passed on addressing the defendants’ challenge that the named plaintiffs could not represent customers who received a different type of call than the ones that they themselves received. Defendants asserted that, while the proposed class encompassed customer recipients of eight different types of calls, the named plaintiffs all received only one of those eight categories, and thus could not represent other customers. Noting that such an argument was a question of class certification, not standing, the court refrained from ruling on the issue.
The potential exposure for the defendants in this action is considerable, as several plaintiffs allege that they received five or six unsolicited calls from an autodialer. The case is Brinker v. Normandin’s, Case No. 5:14-cv-03007, (N.D. Cal).