Federal Court Dismisses Suits for Failure to Allege Harm Traceable to Any TCPA Violation
By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Eric W. Lee
The Southern District of California recently dismissed two Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. § 227 actions for a failure to allege any concrete injury traceable to defendants. In both actions, the court found that plaintiffs had not alleged any concrete harm traceable to defendants’ alleged violation of the TCPA. Due to this, the court held that plaintiffs lacked standing under Spokeo v. Robins, 136 S.Ct. 1540 (2016) (previously discussed here), in which the U.S. Supreme Court held that “a bare procedural violation, divorced from any concrete harm [does not] satisfy the injury-in-fact requirement of Article III.”
In Ewing v. SQM US, Inc., No. 16-cv-1609 (S.D.Cal. Sept. 29, 2016), the plaintiff alleged that the defendants autodialed his cell phone without permission, causing him to incur a charge under his cell phone plan, “waste” time answering the phone, and drain his phone’s battery. The plaintiff also sought to represent a class of others who had purportedly received similar phone calls. The court held that the plaintiff lacked Article III standing. In particular, the court ruled that the “plaintiff cannot allege that Defendants’ use of an ATDS to dial his number caused him to incur a charge that he would not have incurred had Defendants manually dialed his number, which would not have violated the TCPA.” The court quoted McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998), for the proposition that a “plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.” The court stated that its decision was in line with Spokeo v. Robins, 136 S.Ct. 1540 (2016), in which the U.S. Supreme Court held that “a bare procedural violation, divorced from any concrete harm [does not] satisfy the injury-in-fact requirement of Article III.”
In Romero v. Department Stores National Bank, No. 15-cv-193 (S.D.Cal. Aug. 5, 2016), the plaintiff contended that the defendants autodialed her cell phone without permission over 290 times in connection with collecting a debt. The plaintiff answered only three calls. The court held that under Spokeo, the plaintiff lacked Article III standing because she failed to connect any claimed injury with any specific TCPA violation. Specifically, the court held that the plaintiff did “not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA” (emphasis added). Thus, the court ruled that the plaintiff “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA.”
Although other courts since Spokeo have found, without extensive analysis, that TCPA violations caused plaintiffs to suffer a concrete injury sufficient to convey Article III standing, these cases did not address in any meaningful way the issue of whether this harm is traceable to a TCPA violation. Ewing and Romero are two of the first decisions to engage in this analysis. It remains to be seen whether other courts will follow Ewing and Romero’s lead in holding that Article III requires a showing that the alleged harm resulting from a TCPA violation is traceable to defendant’s use of an ATDS.