A federal district judge has paved the way to a successful defense for Telephone Consumer Protection Act (TCPA) claims on standing grounds post-Spokeo. In Romero v. Department Stores National Bank, et al., No. 15-CV-193 (S.D. Cal. Aug. 5, 2016), the Honorable Cathy Ann Bencivengo held that the plaintiff lacked standing to bring her TCPA claims because she failed to put forth evidence that she suffered an injury in fact as to each individual call.
In Romero, the plaintiff alleged that the defendant had placed more than 290 calls to her cell phone using an automatic dialing system (ATDS), although the plaintiff actually answered only two of those calls. The defendant filed a motion to dismiss for lack of subject matter jurisdiction on standing grounds, relying on the Supreme Court’s recent holding in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which held that a statutory violation alone is not sufficient to establish the injury-in-fact requirement of Article III.
The plaintiff argued that she had standing because she suffered the exact harm that Congress intended to eliminate with the TCPA — unwanted calls to her cell phone and violation of her privacy. The court, however, squarely rejected this argument. In particular, the court held that regardless of Congress’s reasons for enacting the TCPA, “one singular call, viewed in isolation and without consideration of the purposes of the call, does not cause any injury that is traceable to the conduct for which the TCPA created a private right of action, namely the use of an ATDS to call a cell phone.”
The court also rejected the plaintiff’s alleged “additional injuries” of invasion of privacy and trespass to chattels. The court found that only lost time, aggravation, and distress could possibly be an injury-in-fact to establish standing. Ultimately, however, the plaintiff’s failure to connect these injuries to each specific call proved fatal to her standing argument. In particular, the court held that the plaintiff could not possibly trace this injury to calls that she did not hear ringing or that she failed to answer. Therefore, the only calls for which the plaintiff could potentially prove standing were the two answered calls. However, the plaintiff could not set forth any evidence that the defendants’ use of an ATDS to place those two calls “caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA.”
Notably, given that the defendants were creditors of the plaintiff attempting to collect on a debt, the court noted that any stress plaintiff might have suffered from such calls was “completely unrelated to the defendants’ use of an ATDS.” Simply put, the plaintiff’s alleged concrete harm was not connected to the defendants’ alleged violations of the TCPA, and since she “would have been no better off had the defendant refrained from the unlawful acts” of which she was complaining, she did “not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.”
Judge Bencivengo’s opinion serves as a refreshing contrast to decisions by various district courts that have continued to find concrete injuries in TCPA actions post-Spokeo. Indeed, Judge Bencivengo explicitly found such cases unpersuasive, as they viewed the calls in the aggregate as opposed to individually. It is hopeful that the case will be the first of many to recognize the impact of Spokeo and the critical Article III standing issues in TCPA actions.