TCPA Alert: Third Circuit holds that allegation of receipt of a single voicemail message is sufficient for initial constitutional standing under the TCPA
July 18, 2017
On July 10, 2017, the United States Court of Appeals for the Third Circuit, applying the United States Supreme Court’s 2016 decision in Spokeo v. Robins, held that a plaintiff’s allegation of receipt of a single, minute-long, prerecorded voicemail message was a sufficiently concrete and particularized alleged injury to survive a Rule 12 challenge to the plaintiff’s constitutional standing.
In Susinno v. Work Out World Inc., Susinno filed a putative TCPA class action in the United States District Court for the District of New Jersey after allegedly receiving one call from Work Out World Inc. (“WOW”) on her cell phone. According to her Amended Complaint, Susinno did not answer that call, and WOW left a minute-long, prerecorded message on Susinno’s voicemail. WOW filed a motion to dismiss Susinno’s Amended Complaint for lack of subject matter jurisdiction based on the absence of constitutional standing. The district court granted the motion, holding that Susinno’s receipt of the voicemail message caused her no concrete injury sufficient to confer constitutional standing.
The Third Circuit reversed. According to the Third Circuit, Spokeo reaffirmed “traditional notions of standing,” which require that a claimant allege some “specific, identifiable trifle of an injury.” Susinno’s allegation of receipt of the minute-long prerecorded voicemail message, while minimal, amounted, according to the Court, to some level of intrusion upon Susinno’s seclusion. Enactment of the TCPA made such an injury “legally cognizable by the democratic process.” Accordingly, the Third Circuit held that Susinno alleged a sufficiently concrete, albeit intangible, injury for purposes of establishing constitutional standing.
While the Third Circuit’s ruling, so far as it went, was a win for the TCPA plaintiffs’ bar, it was not a surprising result, nor does Susinno signal the end of Spokeo challenges to TCPA claims in the Third Circuit, particularly in putative class actions. Susinno confirms that some injury is necessary to establish standing. Susinno’s allegations enabled her to survive a motion to dismiss. However, there is no guarantee that discovery will ultimately support those allegations, and WOW may challenge Susinno’s standing again on a motion for summary judgment.
It is an indictment of the TCPA itself that it potentially has opened up the federal courts to those whose “injuries” are almost always “trifling” at best. However, many TCPA plaintiffs do not “suffer” even the trifling injury that Susinno alleged. What if a TCPA plaintiff blocked one or more of the calls at issue? What if another’s phone was turned off, or was lost or misplaced at the time of the call, such that the plaintiff never even heard the phone ring? There is no intrusion on seclusion in those instances, and Susinno does not necessarily afford standing to those plaintiffs. In fact, Susinno, which confirms the need for a plaintiff to sustain some injury in order to put the wheels of the federal judiciary in motion, suggests those plaintiffs may not have standing at all.
The Constitution requires an actual case or controversy to open the federal courthouse doors. There is no case or controversy absent an actual, concrete, particularized injury. Spokeo battles will persist in TCPA cases after Susinno.
The case is Susinno v. Work Out World Inc., No. 16-3277, United States Court of Appeals for the Third Circuit.