Spokeo, Inc. v. Robins – Applicable to TCPA?

Spokeo v. Robins – Applicable to the TCPA?

Consumer attorneys (and more so Consumer Defense Attorneys) have been making a lot of noise about a recent decision by the US Supreme Court.  In Spokeo v. Robins, the United States Supreme Court reversed and remanded a 9th Circuit Court of Appeals case for further evaluation based on the factors set out by the Court. Spokeo, Inc. v. Robins, __ U.S. __, 136 S.Ct. 1540 (2016).  The question presented to the Supreme Court in Spokeo was “whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” Question Presented, Spokeo, Inc. v. Robins, No. 13-1339 (U.S. April 27, 2015), available at http://supremecourt.gov/qp/13-01339qp.pdf.   While some TCPA Defense Attorneys are pointing to this decision as a victory, the Supreme Court, in fact, did not announce a new standard for determining whether a plaintiff has Article III standing to bring a claim.  Instead, the Supreme Court merely reiterated the standard that has existed for years.

The Supreme Court explained the standard for establishing Article III jurisdiction as follows:

This case primarily concerns injury in fact, the ‘[f ]irst and foremost’ of standing’s three elements. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 103 (1998). Injury in fact is a constitutional requirement, and ‘[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.’ [Raines v. Byrd, 521 U. S. 811, 820, n. 3 1997]; see Summers v. Earth Island Institute, 555 U. S. 488, 497 (2009); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 100 (1979) (‘In no event . . . may Congress abrogate the Art. III minima’).
To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ [Lujan v. Defenders of Wildlife, 504 U. S., 555, 560 (1992)] (internal quotation marks omitted). We discuss the particularization and concreteness requirements below.  For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’ Ibid., n. 1 (additional citations omitted).

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Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’

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A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective ‘concrete,’ we have meant to convey the usual meaning of the term– ‘real,’ and not ‘abstract.’ Webster’s Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization.

‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete. See, e.g., Pleasant Grove City v. Summum, 555 U. S. 460 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (free exercise).
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[B]ecause Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is…instructive and important. Thus, we said in Lujan that Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.’ 504 U. S., at 578. Similarly, Justice Kennedy’s concurrence in that case explained that ‘Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.’ Id., at 580 (opinion concurring in part and concurring in judgment).

Spokeo, __ U.S. __ 136 S.Ct., at 1547-49.

In order to understand why Consumer Claims under the TCPA always have satisfied, and continue to satisfy, the de minimus injury-in-fact- requirements of Article III, two recent, post Spokeo decisions have been issued.  In one of the first post-Spokeo cases to address Article III standing in a TCPA case, the court in Booth v. Appstack, Inc., 2016 WL 3030256 (W.D. Wash. May 24, 2016), denied a defendant’s motion to dismiss based on jurisdiction grounds, stating:

Here, the court is satisfied that Plaintiffs’ allegations demonstrate “concrete injury” as elucidated in Spokeo. In Spokeo, the “injury” Plaintiffs incurred was arguably merely procedural and thus non-concrete. See id. In contrast, the TCPA and WADAD violations alleged here, if proven, required Plaintiffs to waste time answering or otherwise addressing widespread robocalls. (See generally 2AC; Plf. MSJ.) The use of the autodialer, which allegedly enabled Defendants to make massive amounts of calls at low cost and in a short period of time, amplifies the severity of this injury. As Congress and Washington State’s legislature agreed, such an injury is sufficiently concrete to confer standing.

Booth, 2016 WL 3030256, at *5.

Similarly, in Dana Rogers, et al. v. Capital One Bank (USA), N.A., 2016 WL 3162562 (N.D. GA June 3, 2016, the Court denied Defendant’s Motion to Dismiss based on jurisdictional grounds, stating:

The Defendant argues that the Plaintiffs’ complaint should be dismissed for lack of standing. Article III standing requires an actual or imminent injury that is concrete and particularized, fairly traceable to the challenged action, and redressable by a favorable ruling. “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” An injury is concrete when it actually exists. But, an injury does not have to be tangible to be concrete. While Congress may not entirely abrogate the injury requirement, it may statutorily define injuries and chains of causation that would not have existed absent the statute. Specifically, Congress may, by statute, transform a previously non-concrete injury into one that is concrete and therefore sufficient to confer standing. With respect to the TCPA, the Eleventh Circuit has held that Congress intended to create a concrete injury where the statute was violated, meaning so long as the plaintiff has been affected personally by the conduct that violates the statute, standing exists. There, the Eleventh Circuit found standing in a junk-fax scenario under the TCPA, despite the fact that there was no evidence that anyone ever printed or saw the junk faxes at issue. It was enough that the junk faxes made the fax line unavailable for legitimate purposes.

Here, the Plaintiffs alleges that the Defendant made unwanted phone calls to their cell phone numbers, in violation of the TCPA. As the Eleventh Circuit has held, a violation of the TCPA is a concrete injury. Because the Plaintiffs allege that the calls were made to their personal cell phone numbers, they have suffered particularized injuries because their cell phone lines were unavailable for legitimate use during the unwanted calls. The Plaintiffs have alleged sufficient facts to support standing. The Defendant’s motion to dismiss should be denied.

Spokeo dealt with a situation where arguably there was no harm incurred by the Plaintiff based on Spokeo’s alleged violation of the Fair Credit Reporting Act.  On Remand, the Ninth Circuit will use the factors (again, nothing “new” was promulgated by the Supreme Court) set out by the Supreme Court to determine, if in fact, Article III Standing exists in that case.  However, Courts that have denied Motions to Stay TCPA Cases pending the outcome of Spokeo (which has now been decided, as discussed above) and Courts that have since upheld Article III Standing in TCPA cases since the Spokeo decision was issued appear to all reach the same conclusion; Consumers who are abused by Robocallers that violate the TCPA are unaffected by the Decision in Spokeo, and have Article III Standing to sue for their Statutory Damages in Federal Court.

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