Plaintiffs struggle to find 'concrete injury'

In the wake of issuance of one of the most anticipated consumer decisions by the U.S. Supreme Court in recent years, Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016), a handful of district courts have dismissed complaints or granted summary judgment to the defendants in cases brought under the Telephone Consumer Protection Act (TCPA).

The plaintiff in Spokeo sought statutory damages under the Fair Credit Reporting Act (FCRA) from a consumer reporting agency for allegedly incorrectly reporting that he was married with children, employed, affluent and educated. The district court dismissed the complaint for failure to allege injury sufficient to confer standing under Article III. The 9th U.S. Circuit Court of Appeals reversed, holding that the mere fact that the defendant allegedly violated the plaintiff's statutorily conferred FCRA rights gave him standing.

In a 6-2 decision, the Supreme Court vacated and remanded, instructing the 9th Circuit to consider whether the plaintiff had actually alleged a "concrete injury."

Spokeo's holding ? that "Article III requires a concrete injury even in the context of a statutory violation" ? prohibits a plaintiff from relying solely on a defendant's violation of the TCPA to establish standing. Post-Spokeo plaintiffs have attempted to overcome the "concrete injury" hurdle by alleging that the defendants' calls tied up their cellphones, depleted their batteries or minutes, annoyed them, or invaded their privacy.

Although courts have reached different conclusions in the face of differing allegations, a number of courts have concluded that, under some circumstances, a TCPA-prohibited phone call causes no concrete harm.

For example, one federal court reasoned that in order for plaintiffs to suffer a "concrete injury" under Spokeo, they must receive more than a single unwanted phone call. In Smith v. Aitima Med. Equip., Inc., the court dismissed the plaintiff's TCPA claim because any harm she suffered was "de minimis." The court rejected the plaintiff's claim that she was injured by depletion of battery life because "any drainage from a single call is surely minimal."

In another case, Stoops v. Wells Fargo Bank, N.A., a plaintiff had purchased 35 cellphones for the purpose of receiving calls and filing TCPA lawsuits. She sometimes answered the phones and told the telemarketers to quit calling; however, she hoped the telemarketers would continue to call because she believed that she could obtain treble damages for "knowing and willful" TCPA violations. The court dismissed the lawsuit for lack of Article III standing because the plaintiff was not required to "tend to any unwanted calls," and thus any statutorily protected privacy rights had not been invaded.

Some courts have interpreted Spokeo to preclude even those TCPA claims brought by plaintiffs who were allegedly inconvenienced by the defendants' calls. For instance, in Romero v. Dep't Stores Nat'l Bank, the court granted summary judgment for the defendant even though the plaintiff had received 290 unwanted debt collection calls from the defendant over a six-month period. The court rejected the plaintiff's argument that she had suffered "invasion of privacy" and "trespass to chattels" because both "are torts, not injuries in and of themselves. Injury is merely an element of these claims." The court conceded that "lost time, aggravation, and distress" could be an "injury in fact," but held that under the TCPA, the defendant's calls must be considered individually, rather than in the aggregate. Because no reasonable juror would conclude that any individual call caused the plaintiff's distress, summary judgment for the defendant was appropriate.

Further, the court held that plaintiffs must be able to trace their injuries not to TCPA-prohibited calls, but to the defendant's use of an automated telephone dialing system (ATDS). Because the plaintiff in the case would have suffered the same alleged harm had the defendant manually dialed her number ? which would not have violated the TCPA ? the plaintiff could not "trace" her injury to the defendant's unlawful conduct.

Another court has carried this line of reasoning to its logical conclusion, holding that "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." Ewing v. SQM U.S. Inc., 2016 WL 5846494, at *2 (S.D. Cal. Sept. 29, 2016).

The rationales of these decisions may also prove to be an effective weapon against class certification. For instance, defendants may argue that whether or not a plaintiff was "concretely" injured is a matter requiring individualized inquiry, making class certification inappropriate. How courts ultimately resolve these issues will depend on further developments in post-Spokeo case law.