To provide an answer to the titled question, this month Lawyer Monthly reached out to the Law Offices of Scott Warmuth, where Attorney Nathaniel Clark explains, with a complex court judgment as the foundation, the ins and outs of autodialing and robocalls in the US.
Post-Spokeo TCPA Standing in the Ninth Circuit
Plaintiffs seeking redress for consumer statutory violations must allege more than bare-bones violations to preserve standing in federal court post-Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).
Decided by SCOTUS on May 16th, 2016, Spokeo addressed whether consumers can establish standing by alleging the mere violation of a statutory right. The Court found that to establish an "injury in fact", plaintiffs must show an "invasion of a legally protected interest" that is "concrete and particularized" and "actual and/or imminent, not conjectural or hypothetical".
Thus, despite the fact that the Court recognizes "intangible" injuries as defined by Congress, a "concrete injury" must be shown even in the context of statutory violations. The Court remanded Spokeo back to the Ninth Circuit to determine whether plaintiff Robins, in alleging a plain violation of statutory rights under the Fair Credit Reporting Act, 15 U.S.C. § 1681, had shown that he suffered a concrete and particularized injury. In so doing, the Court clarified that Robins could not allege a naked procedural violation divorced from any concrete harm.
Spokeo has directly affected the standing analysis under other federal statutes, including the Telephone Consumer Protection Act. 15 U.S.C. § 227, et seq. Broadly speaking, the TCPA prohibits the use of automatic telephone dialing systems (colloquially known as ‘robocalls’) to dial a consumer's cellular phone without the consumer's prior express consent. Before Spokeo, little attention was paid to the standing requirements for a plaintiff alleging TCPA violations, which provide for damages of $500 to $1500 per call. Ninth Circuit district courts have not reached a consensus regarding the specific requirements of Spokeo for alleging "concrete" harm as a result of receiving unwanted automated calls.
As discussed in the recent Northern District decision of Juarez v. Citibank, N.A., Case No. 16-CV-01984 (N.D. Cal. Sept. 1, 2016), some courts have found standing where the plaintiff alleged that the automated calls waste the plaintiff's time. Another example of sufficient harm was shown where the consumer continued to receive unwanted phone calls even after the plaintiff instructed the defendant to stop calling. Courts have even considered the fact that a consumer's cellular phone becomes unavailable for legitimate use while it is being occupied by an autodialer.
Other examples of harm include embarrassment and disruption of business affairs due to receiving unwanted calls during working hours. Haysbert v. Navient Sols., Inc., No. 15-CV-41444, at *5 (Mar. 8, 2016). Plaintiff counsel should further consider potential violations of privacy under the California Constitution to establish standing, particularly if a defendant continued to engage in robocalls after being instructed to stop.
But not all courts agree, as starkly demonstrated by the decision of Romero v. Dep't Stores Nat'l Bank, 15-CV-193 (S.D. Cal. Aug. 5, 2016), where the court found that the plaintiff could not show that any individual call of the 272 calls she received from a debt collector had caused sufficient lost time, aggravation, or distress to constitute a concrete injury. Romero represents the extreme end of the spectrum, but should alert TCPA and other consumer law attorneys to the reality that statute-driven lawsuits are not always viewed favorably by district courts, and that consequently, counsel must go to great lengths to explain to courts how the statutory violations actually impacted the lives of their clients in a manner that justifies a lawsuit.
The lesson to be taken from the developing state of standing for statutory violations post-Spokeo is clear: plaintiff counsel should take particular care to specifically allege in detail the harm their clients incurred as a result of the statutory violation. In the case of TCPA plaintiffs, counsel should avoid the temptation to rely on the fact that the TCPA provides for statutory damage. Counsel should instead focus on the violation of privacy and waste of time, along with the general aggravation caused by repeated and unwanted calls. Doing so will not only preserve your client's standing for the statutory violation, but will tell a human story and help the trier of fact understand your client's case.
