TCPA Alert: Southern California District Court Dismisses TCPA Claim, Holds Proof of Concrete Injury-In-Fact Is Required for Each Call
September 29, 2016
The Telephone Consumer Protection Act (TCPA) has been described by an FCC Commissioner as a “poster child for lawsuit abuse.” The TCPA is particularly susceptible to abuse because it makes available statutory damages of $500-$1,500 for each phone call made or text message or fax sent in violation of the Act, regardless of whether a claimant has suffered any actual harm at all. Businesses that engage in telemarketing can place or send thousands of calls, texts, or faxes each day. Consequently, the risks for such businesses can be both daunting and grossly disproportionate to any actual harm.
Recently, however, in one of the first significant TCPA opinions following the U.S. Supreme Court’s decision in Spokeo v. Robins, a federal district court rejected a plaintiff’s attempt to aggregate statutory damages in the absence of any actual injury-in-fact and strengthened the ability of businesses to curtail run-away TCPA claims. In Romero v. Department Stores National Bank, the United States District Court for the Southern District of California held that, in a TCPA case, a plaintiff must present evidence of a concrete injury-in-fact specific to each individual call at issue. The court concluded that the mere dialing of a cell phone number using an automated telephone dialing system (ATDS) does not cause an injury to the recipient and therefore is insufficient to confer constitutional standing to enable a plaintiff to remain in federal court.
Romero claimed that she received calls in violation of the TCPA related to alleged credit card debt. She claimed that the defendant credit card companies called her cellular telephone nearly 300 times using an ATDS. Romero answered only two of the calls at issue, but nonetheless claimed that, as a result of those calls, she experienced severe distress, anxiety, irritation, and even marital problems.
Relying on the Supreme Court’s decision in Spokeo, the defendants requested that the court dismiss the case for lack of constitutional standing. The defendants argued that an alleged procedural violation of the TCPA — i.e. use of an ATDS — does not automatically cause a concrete and particularized injury sufficient to confer standing. The court agreed.
According to the court, Romero failed to present evidence of an injury-in-fact for three types of calls:
- Romero did not sustain an injury-in-fact when she did not hear her cell phone ring, because she must, at the very least, have been aware of the calls when they occurred in order to have even arguably suffered any harm;
- Romero suffered no injury sufficient to establish standing for calls when she heard her cell phone ring, but did not answer, because no reasonable juror could find that an unanswered phone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing; and
- Romero sustained no injury for answered calls, because she could not offer evidence demonstrating that the defendants’ use of an ATDS caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually.
Finally, the court also analyzed the defendants’ conduct in relation to Romero’s alleged injuries. Quoting Spokeo, the court stated that any stress Romero might have suffered from such calls “was divorced from the alleged violation of the TCPA.” The court rejected Romero’s argument that the defendants’ alleged use of an ATDS to make thousands of calls per day was sufficient to show an injury-in-fact. Instead, the court noted that the Romero’s standing must be based solely on her alleged loss, not the defendants’ efficiency gains, and that the “[she] would have been no better off had defendants dialed her telephone number manually.”
If it gains traction with other courts, the decision in Romero would impose some welcome restraint, rationality, and fairness on abusive TCPA claims filed by opportunistic claimants.
The case is Romero v. Department Stores National Bank, No. 15-cv-00193 (S.D. Cal. Aug. 5, 2016).