District Court Holds Allegations of Cell Phone Charges Insufficient to Establish Article III Standing to Bring TCPA Action Under Spokeo

In the wake of the Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), a growing trend is emerging with respect to cases involving claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Indeed, while many early decisions held that "a violation of the TCPA is a concrete injury," see, e.g., Rogers v. Capital One Bank (USA), N.A., No. 1:15-cv-4016, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016), more recently, some courts are requiring more. In fact, in Ewing v. SQM US, Inc. et al., Judge Cathy Ann Bencivengo of the Southern District of California held last week that not even specifically pled cellular phone charges incurred as a result of telephone calls made by an automatic telephone dialing system ("ATDS") are necessarily enough to establish standing for purposes of the TCPA. See Order Granting Motion to Dismiss at pp. 4-6, No. 3:16-cv-1609 (S.D. Cal. Sept. 29, 2016), ECF No. 23. The plaintiff in Ewing had alleged that the defendants violated the TCPA by utilizing an ATDS to call his cellular telephone number without his prior express consent. Id. at pp. 1-2. Seeking to represent a nationwide class, the plaintiff specifically asserted in his complaint that these phone calls resulted in wireless phone charges, and alleged that such charges were sufficient to establish Article III standing. See id. at pp. 2, 4. The district court, however, disagreed.

In granting the defendants' Motion to Dismiss, the district court reiterated that "'it 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,'" adding that "[a] 'bare procedural violation, divorced from any concrete harm,' does not satisfy the injury-in-fact requirement of Article III." Id. at p. 3 (quoting Spokeo, 136 S. Ct. at 1547-49). According to the district court, although the plaintiff in Ewing alleged in his First Amended Complaint that "he actually incurred a specific charge for Defendants' call to his cellular telephone," he nevertheless "does not adequately allege standing" because he "does not, and cannot, connect this claimed charge with the alleged TCPA violation - Defendants' use of an ATDS to dial his cellular telephone number." Id. at p. 4. More specifically, the court explained that the plaintiff "does not, and 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," and for that reason found that the plaintiff "did not suffer an injury in fact traceable to Defendants' violation of the TCPA." Id. Notably, while the plaintiff also argued that the defendants' phone calls caused a concrete injury because "'he had to waste time answering and addressing the robo-call," and because "the call depleted his phone's battery," the court rejected the arguments. See id. In particular, the court made clear "[a]s with the charge Plaintiff allegedly incurred because of the call, these injuries are not connected to Defendants' alleged use of an ATDS to dial his number." Id. at pp. 4-5. Instead, the court clarified, the plaintiff again "would have been no better off had Defendants dialed his number manually." Id. at p. 5. As a result, the district court held that because the plaintiff's "alleged concrete harm . . . was divorced from the alleged violation of the TCPA," the plaintiff "has not and cannot satisfy the standing to sue requirements of Article III," and for that reason dismissed the plaintiff's TCPA claims, with prejudice. Id. at pp. 5-6.

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