Spokeo Redux: Minn. District Court Judge Denies Motion to Dismiss TCPA Case for Lack of Standing

Relying on the Supreme Court case of Spokeo v. Robbins, (136 S.Ct. 1540 (2016), on August 3rd U.S. District Court Judge Richard H. Kyle denied a request to dismiss a plaintiff’s Telephone Consumer Protection Act (TCPA) claim for lack of standing.

The case is Ung v. Universal Acceptance Corporation, (Case No. 15-127-( RHK/FLN) (United States District Court, District of Minnesota, August 5, 2016). A copy of the Order denying Defendant’s motion to dismiss for lack of subject matter jurisdiction can be found here.

In this action, Plaintiff Spencer Ung alleged that Defendant Universal Acceptance

Corporation (Universal) made unauthorized calls to his cell phone, in violation of the TCPA.

In June of this year, Defendant had asked the court to dismiss the case as moot arguing theories from the Supreme Court case of Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). On June 3, 2016 the court denied Universal’s Motion to Dismiss, concluding that a settlement offer by Universal in March 2016 had not mooted the case. A copy of the court’s June 3^rd Memorandum Opinion and Order on that motion can be found here.

On June 10, 2016 Universal moved again for dismissal, this time arguing Ung lacks standing based on the Supreme Court’s recent decision in Spokeo, Inc. v. Robins.

Background

The Complaint alleged that beginning in June 2014, Universal repeatedly called

Ung’s cell phone in an attempt to reach an individual named Joseph Holly, for whom

Mr. Ung was apparently listed as a credit reference. Ung alleged that he had no prior

relationship with Universal and had never consented to being contacted on his cell phone by the company. He also alleged that he repeatedly told Universal to stop calling, but the calls continued unabated, including from an automated telephone dialing system.

Ung eventually sued, alleging that Universal had violated the TCPA by calling his cell phone using an Automated Telephone Dialing System (ATDS) without his consent; he purported to seek relief for himself and a class of similarly situated individuals.

The Court’s Decision

Universal’s latest motion to dismiss is based upon the above referenced Spokeo decision and the Supreme Court’s discussion of “injury in fact.” Universal argued that Ung has not suffered a sufficient concrete injury here.

Judge Kyle did not agree. He wrote:

“Cases, however, have repeatedly recognized that the receipt of unwanted phone calls constitutes a concrete injury sufficient to create standing under the TCPA. See, e.g., Caudill v. Wells Fargo Home Mtg., Inc., Civ. No. 5:16-066, 2016 WL 3820195, at *2 (E.D. Ky. July 11, 2016) (noting that calls caused harms “such as the invasion of privacy [that] have traditionally been regarded as providing a basis for a lawsuit in the United States”); Rogers v. Capital One Bank (USA), N.A., No. 1:15-CV-4016, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016) (rejecting argument plaintiffs lacked standing under TCPA where they alleged “the Defendant made unwanted phone calls to their cell numbers”); Mey v. Got Warranty, Inc., __ F. Supp. 2d__, 2016 WL 3645195, at *7 (N.D. W. Va. 2016) (collecting cases); see also, e.g., Cour v. Life360, Inc., Civ. No. 16-805, 2016 WL 4039279, at *2 (N.D. Cal. July 28, 2016) (receipt of single unauthorized text message sufficient to create standing under TCPA). Indeed, Universal correctly notes that both Congress (in passing the TCPA) and the Federal Communications Commission (when interpreting the statute) have recognized the harms inherent in the receipt of automated calls, in particular the invasion of privacy and the intrusion upon seclusion. (See Def. Mem. at 8-10.) And Universal does not seriously quibble with the notion that receipt of autodialed calls constitutes an invasion of privacy sufficient to create standing.”

However, Universal’s motion was based on more than a simple “injury in fact” argument. Judge Kyle wrote:

“Universal’s argument is more nuanced. It contends the TCPA is intended only to remedy calls placed by an “automatic telephone dialing system,” 47 U.S.C. § 227(b)(1)(A)(iii), but the FCC has interpreted that term to include equipment with the capacity to place automated calls. In other words, according to the FCC, a defendant may transgress the statute by manually dialing an unwanted phone call, as long as the system used to make the call has the capacity to autodial. Universal claims that is precisely what happened here: it “called Plaintiff twelve times [and] the evidence shows[] these calls were made by a live person who manually placed the calls to Plaintiff’s phone number.” (Def. Mem. at 2.) As a result, Universal argues that Ung can demonstrate, at most, only the type of “bare procedural violation” insufficient to create standing under Spokeo, since the prevention of manually dialed calls was not the TCPA’s aim.

Ung hotly contests whether the calls he received from Universal were manually dialed rather than autodialed. But the Court need not wade into that dispute at this juncture, because assuming arguendo the calls were placed manually, Ung still has standing to sue. This is because Universal’s argument conflates the means through which it (allegedly) violated the TCPA with the harm resulting from that alleged violation.

An example best makes this clear. Assume that a plaintiff sued after receiving only one unwanted phone call from the defendant. In that instance, how would the plaintiff’s harm differ if he had received a manually dialed call placed on equipment capable of autodialing versus a call that was in fact autodialed? In either case, the plaintiff received only one call, and hence the alleged invasion of his privacy would have been precisely the same. While the injury in such a situation might well be minimal, it is enough to clear Article III’s low bar for a concrete injury.

The manner in which the call was placed has no bearing on the existence of the injury; the use of an autodialer might increase the possibility of a plaintiff receiving hundreds or thousands of phone calls, thus perhaps increasing the extent of the invasion of his privacy, but it is the fact of the call (or calls) that creates the injury sufficient to confer standing.

In this Court’s view, therefore, it makes no difference whether the calls Ung received were manually dialed or autodialed because the resultant harm is the same. And that alleged harm is a concrete injury-in-fact sufficient to confer standing.”

insideARM Perspective

This case has seen three separate issues addressed that have been used to defend TCPA cases; 1) Using Campbell Ewald to moot a TCPA claim, 2) Using Spokeo to dismiss a case for lack of subject matter jurisdiction, and, 3) The definition of an ATDS. All three issues have gone in favor of the Plaintiff and against the Defendant.

Yesterday insideARM wrote about another TCPA case (Romero v. Department Stores National Bank, (Case No. 15-cv-193-CAB-MDD) Southern District of California, August 5, 2016) that addressed Spokeo. See that article here. In Romero a United States District Court Judge in California came to a completely opposite decision on the issue of standing.

insideARM suspects that TCPA decisions will continue to be split for a significant period of time as courts throughout the country address the Spokeo ramifications.