Consistent with the growing trend among lower federal courts, the U.S. Court of Appeals, Third Circuit recently reversed a district court order in Susinno v. Work Out World, which had dismissed a putative Telephone Consumer Protection Act (TCPA) class for lack of standing where the plaintiff had received a single prerecorded call from the defendant offering a VIP gym membership but otherwise suffered no damages.

Since Spokeo v. Robins, 136 S.Ct. 1540 (2016) was decided in May 2016, a first line of defense for litigants facing TCPA class claims was to argue that the named plaintiff lacked standing under Article III of the U.S. Constitution. This argument was grounded in Spokeo’s holding that standing requires a “concrete injury” even where a plaintiff is claiming merely a statutory violation as opposed to actual damages—which is often true in putative TCPA class actions.

In Susinno, the named plaintiff alleged that she suffered harm from Work Out World’s single, unsolicited call to her cell phone—which she did not answer, was left on her voicemail, and resulted in no fees or other expense to her—because it reduced her available cellular minutes, wasted her time retrieving the voicemail, depleted her cellular phone battery and was a “nuisance.” In essence, the Third Circuit agreed with the plaintiff, ruling that the single call was an invasion of the plaintiff’s privacy and was precisely the type of harm against which the TCPA was designed to protect despite the marked lack of monetary harm.

In particular, the panel wrote that “[w]here a plaintiff’s intangible injury has been made legally cognizable through the democratic process, and the injury closely relates to a cause of action traditionally recognized in English and American courts, standing to sue exists.” In some respects, this language seems at odds with Spokeo, which expressly ruled that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” It is unclear from the Third Circuit’s decision whether it is in fact finding that a statutory violation is sufficient to confer standing or if something more is required. And it will be interesting to see how this language is interpreted in the district courts.

Why it matters: The Third Circuit is the most recent among various federal courts to find Article III standing under Spokeo even in the face of a one-time, seemingly intangible injury. While the Third Circuit is typically plaintiff-friendly in the consumer protection arena, this decision demonstrates that the Spokeo card will be a difficult one to play in TCPA cases. As Spokeo has not been the silver bullet some in the defense bar (optimistically) hoped it would be, knowledge of the TCPA and creativity in defending these cases remain critical.

The complete Susinno opinion is publicly available here.