The U.S. District Court for the Northern District of California recently held that an individual had Article III standing to bring a federal Telephone Consumer Protection Act claim against a bank because the individual sufficiently alleged a concrete and particularized injury.
However, the Court warned that not just any alleged violation of the TCPA will necessarily give rise to Article III standing. The Court found persuasive the allegations here that the bank supposedly made voluminous calls to the individual even after the individual supposedly requested the bank to stop calling him because he was not the debtor.
A copy of the opinion is available at: Link to Opinion.
The plaintiff alleged that during a 12-day period the defendant bank called him at least 42 times on his cellular phone using an autodialer and/or an artificial or prerecorded voice in an attempt to collect a consumer debt. He alleged that he received at least three calls a day during this time period and provided a chart detailing the date and time of the calls.
Furthermore, the plaintiff alleged that he did not give the bank prior written consent to make these calls and repeatedly requested that the bank stop calling, informing the bank that he was not the individual it was attempting to contact. Prior to receiving these calls, he allegedly never had any contact with the bank and did not provide them with his phone number.
The individual filed a putative class action under the TCPA and the Rosenthal Act, a California statute paralleling the federal Fair Debt Collection Practices Act. The bank moved to dismiss and to strike the complaint arguing that the individual failed to allege standing, failed to state a claim, and used improper fail safe class definitions.
The U.S. District Court for the Northern District of California first addressed the issue of Article III standing under the recent Supreme Court of the United States ruling Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).
As you may recall, to establish standing under Spokeo, a plaintiff bringing a statutory violation must still allege a concrete and particularized injury. The bank argued that the plaintiff merely alleged a procedural violation without concrete harm or injury, while the individual argued that the phone calls were harm in the form of involuntary telephone and electrical charges, aggravation, nuisance, and invasion of privacy.
The Court noted that district courts have not reached a consensus on whether a plaintiff’s allegations that she received annoying and unwanted phone calls in violation of the TCPA is sufficient to establish Article III standing since Spokeo was decided. Some courts found that allegations of an autodialing system to call thousands of phone numbers to promote its products was in and of itself a concrete injury under the TCPA because the allegations required plaintiffs to waste time answering or otherwise addressing the calls, and because the calls made the phones unavailable for other calls.
In contrast, the Court here noted, other courts have found that a plaintiff who alleged voluminous phone calls from a debt collector could not establish standing under the TCPA because she could not show that any individual phone call had caused sufficient lost time, aggravation, and distress to constitute a concrete injury.
After weighing these contradictory opinions, the Court held that the present individual had pleaded sufficient facts to show that the unwanted calls he received were an annoyance that caused him to waste time.
However, the Court warned that any alleged violation of the TCPA will not necessarily give rise to Article III standing. The Court cited calls made to a neglected phone that go unnoticed or calls that are dropped before they connect as an example of allegations that may violate the TCPA but not cause any concrete injury.
The plaintiff here alleged that he received at least 42 unwanted and unsolicited phone calls from the bank, getting multiple calls a day. Furthermore, the plaintiff here alleged that he repeatedly requested that the bank stop calling, supposedly informing the bank that he was not the individual they were attempting to contact, but that the bank continued calling. The Court found these allegations, if proven true, to show that the individual wasted his own time and energy dealing with the unwanted phone calls.
The Court explained that even a single phone call can cause lost time, annoyance, and frustration — but especially so where the recipient receives repeated, regular phone calls from the same number and asks the caller to stop, but due to the call pattern, nevertheless worries about and anticipates additional calls.
Accordingly, the Court held that the plaintiff’s allegations that he received numerous and repeated unwanted calls that caused him aggravation, nuisance, and an invasion of privacy, even after he supposedly asked that the calls be stopped, was sufficient to allege a concrete and particularized injury that establishes Article III standing under Spokeo.
Next, the Court addressed the individual’s standing to sue under the Rosenthal Act. The Rosenthal Act defines “debtor” as “a natural person from whom a debt collector seeks to collect a consumer debt that is due or owing or alleged to be due and owing from such person.” Cal. Civ. Code § 1788.2. The bank argued that the plaintiff could not bring suit under the Rosenthal Act because only the actual debtor could bring a claim under the Rosenthal Act.
However, the Court disagreed. The Court noted that the plaintiff alleged that he asked the bank to stop calling him and that he was not the individual they were attempting to contact. However, the bank allegedly continued to contact the individual seeking to collect a debt. Consequently, under these allegations, the Court determined that whether or not the individual was the debtor was in dispute and consequently the plaintiff had standing to bring a claim under the Rosenthal Act.
Relatedly, the Court analyzed whether the individual failed to state a claim under the Rosenthal Act. The plaintiff brought his claim under sections 1788.11 (d) and (e), which prohibit a debt collector from causing a telephone to “ring repeatedly or continuously to annoy” and from communicating with a debtor with “such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances.” Cal. Code §§ 1788.11 (d) and (e).
The Court disagreed with the bank’s argument that the individual failed to state a claim under the Rosenthal Act because he alleged only that he received a large number of calls and made no allegations regarding the content of any call. To the contrary, the Court noted that the plaintiff not only alleged that there was a large volume of calls, but that the individual alleged a pattern of calls and alleged that he informed the bank to stop calling him because he was not the individual they were attempting to contact.
The Court was satisfied that these allegations constituted harassing behavior under the Rosenthal Act. Consequently, the individual’s allegations stated a potential claim under this California statute.
Last, the Court denied the bank’s motion to strike the class definition because it was premature. The Court reasoned that these issues are best addressed through a class certification motion after some discovery has been conducted.
Thus, the Court denied both the bank’s motion to dismiss and the motion to strike.