Telephone Consumer Protection Act (“TCPA”) plaintiffs often file putative class actions seeking potentially crippling statutory damages. Not surprisingly, TCPA defendants often seek an early dismissal based on Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), particularly when the named plaintiff alleges minor, technical TCPA violations. The Spokeo argument typically contends that, despite a technical violation of the TCPA, the plaintiff has not suffered a “concrete injury” sufficient to confer Article III standing. Following the Ninth Circuit, the Third Circuit recently rejected this defense. See Susinno v. Work Out World Inc., No. 16-3277, 2017 WL 2925432 (3d Cir. July 10, 2017); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017). Particularly after the Third Circuit’s decision in Susinno earlier this month, some observers are questioning the viability of Spokeo arguments in TCPA cases, but consideration of these cases in context reveals that this conclusion may be somewhat premature.
The Susinno complaint alleged what can only be described as a minor TCPA violation. The named plaintiff claimed that the defendant fitness company placed a single, unsolicited, and unanswered call to her cell phone and left a one-minute voicemail message. 2017 WL 2925432, at *1. The district court found this insufficient to establish standing, finding a single solicitation not “‘the type of case that Congress was trying to protect people against’” and that the plaintiff suffered no concrete injury. Id.
Following In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3d Cir. 2017), the Third Circuit broadly interpreted Spokeo to provide standing where a party brings a statutory claim “alleging ‘the very injury [the statute] is intended to prevent,’ and the injury ‘has a close relationship to a harm … traditionally … providing a basis for a lawsuit in English or American courts.’” 2017 WL 2925432, at *4 (citing Horizon, 846 F.3d at 638-40). In the Third Circuit’s view, the Susinno plaintiff met this standard because: (1) the TCPA “addresses itself directly to single prerecorded calls” for the purpose of protecting consumers’ interests in privacy and avoidance of nuisances, and (2) in enacting the TCPA, Congress sought to protect the same interests implicated in the traditional common law cause of action for invasion of privacy. Id. Thus, Plaintiff’s claim of nuisance and an invasion of privacy sufficed. Id.
The Third Circuit also favorably cited Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1040-41 (9th Cir. 2017), where the Ninth Circuit found standing under Spokeo where the plaintiff received two unwanted text messages from a fitness company. In the Ninth Circuit’s view, the plaintiff possessed standing because “[t]he TCPA establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent” and “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” Id. at 1043. As a technical matter, however, the Van Patten decision holds only that the plaintiff sufficiently alleged standing, and the court did not engage in a detailed factual analysis even though the case had proceeded to the summary judgment phase. Id. at 1040.
Key takeaways. The Susinno decision demonstrates that, when confronted with a complaint alleging that the plaintiff incurred the type of harm the TCPA seeks to address, at least some post-Spokeo courts will remain hesitant to find a lack of standing. In these jurisdictions, Rule 12 motions to dismiss will largely be unsuccessful. A defendant might be better served by deposing the plaintiff and developing direct evidence that the plaintiff’s alleged harms are inconsequential, and hoping that a fact-based attack on the standing issue will produce a dismissal on summary judgment.