In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
135
STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byPerrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. (Attachments: #1 Exhibit A)(Related document(s) #101 ) (Straite, David) (Filed on 7/1/2016)
Exhibit A
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WHEELING
DIANA MEY, individually and on
behalf of a class of persons and
entities similarly situated,
Plaintiff,
v.
CIVIL ACTION NO. 5:15-CV-101
(BAILEY)
GOT WARRANTY, INC., GANNA FREIBERG,
N.C.W.C., INC., and PALMER
ADMINISTRATIVE SERVICES, INC.,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
Pending before this Court is the Motion to Dismiss Pursuant to Rule 12(b)(1) or in
the Alternative, Motion to Stay Pending Supreme Court Review [Doc. 71], filed February
12, 2016, by defendants N.C.W.C., Inc. and Palmer Administrative Services, Inc. In March
of 2016, the Motion had been fully briefed and was then ripe for adjudication. By Order
entered March 22, 2016, this Court granted the aspect of the Motion seeking a stay of
proceedings pending the Supreme Court’s decision in Spokeo, Inc. v. Robins, 742 F.3d
409 (9th Cir. 2014), cert. granted, 135 S.Ct. 1892 (U.S. Apr. 27, 2015) (No. 13-1339).
On May 16, 2016, the United States Supreme Court issued its decision in the
Spokeo case. By Order entered May 19, 2016, this Court ordered the parties to file briefs
explaining how the Supreme Court’s decision affects their respective positions and opining
as to how this Court should proceed in the matter. The requested briefs having been
received, this Court is now prepared to rule on the aspect of the Motion seeking dismissal
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of the case for lack of subject matter jurisdiction.
I.
BACKGROUND
The plaintiff filed the instant action on August 6, 2015, “to enforce the consumer-
privacy provisions of the Telephone Consumer Protection Act.” [Doc. 1 at ¶ 1]. The
Complaint alleges that defendant Got Warranty, Inc.1 placed “computer-dialed
telemarketing calls” to the plaintiff’s cellular telephone and to a number the plaintiff “had
registered on the National Do Not Call Registry” without the plaintiff’s consent in order “to
promote the services of Palmer Administrative Services, Inc.” [Id. at ¶¶ 2-3]. The Complaint
also alleges that the calls were “transmitted using technology capable of generating
hundreds of thousands of telemarketing calls per day.” [Id. at ¶ 5]. Thus, the plaintiff
asserts that she is bringing this action “on behalf of a proposed nationwide class of other
persons” who received like telephone calls. [Id.].
Based on the alleged calls, the plaintiff has brought one count for “[v]iolation of the
TCPA’s provisions prohibiting autodialer and prerecorded message calls to cell phones,”
a second count for “[v]iolation of the TCPA’s Do Not Call Provision,” and a third count for
“[i]njunctive relief to bar future TCPA violations.” [Id. at p. 12].
II.
APPLICABLE LAW
Article III Standing & the TCPA
Under the Telephone Consumer Protection Act (“TCPA”), a party is prohibited from
making “any call (other than a call made for emergency purposes or made with the prior
express consent of the called party) using any automatic telephone dialing system or an
1
On March 15, 2016, plaintiff amended her Complaint to join Ganna Freiberg as a
defendant in place of Got Warranty, Inc., which is believed to be defunct.
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artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular
telephone service[.]” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA creates a private right of
action in which a person may bring “an action to recover for actual monetary loss from such
a violation, or to receive $500 in damages for each such violation, whichever is greater.”
47 U.S.C. § 227(b)(3)(B).
Article III, section 2 of the United States Constitution limits the judicial power of
federal courts to cases and controversies. To qualify as a case or controversy, a plaintiff
in federal court must have (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). To establish an
injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected
interest that is “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical.” Id. at 1548.
III.
ANALYSIS
In Spokeo, the Supreme Court addressed the injury-in-fact requirement for Article
III standing. Spokeo appears to have broken no new ground. Rather, the Supreme Court
confirmed the long-established principle that injury-in-fact is one of three elements required
for standing. Id. at 1547. “To establish injury in fact, a plaintiff must show that he or she
suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548. The Supreme Court held
that the Ninth Circuit Court of Appeals had addressed the particularity requirement of injury
in fact — the requirement that the injury “must affect the plaintiff in a personal and
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individual way” — but had overlooked the concreteness requirement, and had therefore
failed to determine whether a consumer reporting agency’s alleged violations of the Fair
Credit Reporting Act’s procedural requirements caused concrete injury. Id.
Spokeo confirms that either tangible or intangible injuries can satisfy the
requirement of concreteness. Id. at 1549.
Where the injury is intangible, Spokeo
summarizes two approaches to meet this requirement. First, courts should consider
“whether an alleged intangible harm has a close relationship to a harm that has traditionally
been regarded as providing a basis for a lawsuit in English or American courts. Id. As the
Court noted, “the law has long permitted recovery by certain tort victims even if their harms
may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§ 569 (libel),
570 (slander per se) (1938).” Id. at 1549.
Second, Congress may “elevat[e] to the status of legally cognizable injuries
concrete, de facto injuries that were previously inadequate in law ... .” Id. (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 578 (1992)). It “has the power to define injuries
and articulate chains of causation that will give rise to a case or controversy where none
existed before.” Id.
The Court also noted that merely asserting a “bare procedural violation, divorced
from any concrete harm,” will not satisfy the concreteness requirement.
Id.
This
observation has little application to claims under the TCPA, since those claims are not
based on “bare procedural” rights, but rather on substantive prohibitions of actions directed
toward specific consumers. Even for procedural rights, however, a “risk of real harm” can
satisfy Article III. Id. The Court stated: “[T]he violation of a procedural right granted by
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statute can be sufficient in some circumstances to constitute injury in fact. In other words,
a plaintiff in such a case need not allege any additional harm beyond the one Congress has
identified.” Id. The Court offered two examples:
M
“‘[I]nability to obtain information’ that Congress had decided to make public
is a sufficient injury in fact to satisfy Article III ... .”
M
“[F]ailure to obtain information subject to disclosure under the
FederalAdvisory Committee Act ‘constitutes a sufficiently distinct injury to
provide standing to sue’ … .”
Id. at 1549-50.
In Spokeo, the defendant sought a ruling that would have eviscerated causes of
action seeking statutory damages. But the Supreme Court did no such thing. Instead, it
issued a narrow ruling remanding the case to the Ninth Circuit solely on the basis that it
failed to address the extent to which Robins’ injuries were “concrete” as opposed to merely
particularized, notwithstanding prior Supreme Court precedent requiring a finding of both.
Id. at 1545. The Supreme Court explicitly took no position on whether Robins’ injuries were
in fact concrete for standing purposes. Id. at 1550.
Spokeo thus created no new law; it merely remanded the case to allow the Ninth
Circuit to conduct the proper analysis. As Justice Alito noted, “[w]e have made it clear time
and time again that an injury in fact must be both concrete and particularized.” Id. at 1549
(emphasis in original).
This Court finds that unwanted phone calls cause concrete harm. For consumers
with prepaid cell phones or limited-minute plans, unwanted calls cause direct, concrete,
monetary injury by depleting limited minutes that the consumer has paid for or by causing
the consumer to incur charges for calls. In addition, all ATDS calls deplete a cell phone’s
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battery, and the cost of electricity to recharge the phone is also a tangible harm. While
certainly small, the cost is real, and the cumulative effect could be consequential.
Of more import, such calls also cause intangible injuries, regardless of whether the
consumer has a prepaid cell phone or a plan with a limited number of minutes. The main
types of intangible harm that unlawful calls cause are (1) invasion of privacy, (2) intrusion
upon and occupation of the capacity of the consumer’s cell phone, and (3) wasting the
consumer’s time or causing the risk of personal injury due to interruption and distraction.
One of the ways that Spokeo identifies to establish that an intangible injury is
concrete is to show that it “has a close relationship to a harm that has traditionally been
regarded asproviding a basis for a lawsuit in English or American courts.” Spokeo at 1549.
Invasion of privacy is just such an intangible harm recognized by the common law. Almost
all states recognize invasion of privacy as a common law tort. See Eli A. Meltz, No Harm,
No Foul? Attempted Invasion of Privacy and the Tort of Intrusion Upon Seclusion, 83
Fordham L. Rev. 3431, 3440 (May, 2015) (state-by-state survey; “Currently, the vast
majority of states recognize the intrusion strand of invasion of privacy either under common
law or by statute”).
The invasion of privacy claim that is most analogous here is intrusion upon
seclusion. See Restatement (Second) of Torts § 652B (1977). The Fourth Circuit has
recognized that the TCPA’s prohibitions against robo-calls implicate privacy interests in
seclusion. Maryland v. Universal Elections, Inc., 729 F.3d 370, 377 (4th Cir. 2013). This
tort claim has also often been applied to unwanted telephone calls. See, e.g., Charvat v.
NMP, L.L.C., 656 F.3d 440, 452–453 (6th Cir. 2011) (Ohio law) (repeated telemarketing
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calls, especially after do-not-call request, may be invasion of privacy); St. Paul Fire &
Marine Ins. Co. v. Green Tree Financial Corp., 249 F.3d 389 (5th Cir. 2001) (Tex. law).
In essence, the TCPA can be seen as merely liberalizing and codifying the application of
this common law tort to a particularly intrusive type of unwanted telephone call. While the
common law tort may require different elements than the TCPA, the Supreme Court’s focus
in Spokeo was not on the elements of the cause of action but rather on whether the harm
was of a type that traditionally provides a basis for a common law claim.
It is not only the common law that recognizes as actionable the harm caused by
invasion of privacy. The right to privacy is protected under the Constitution. See, e.g.,
Lawrence v. Texas, 539 U.S. 558 (2003); Eisenstadt v. Baird, 405 U.S. 438 (1972). See
also Winston v. Lee, 470 U.S. 753, 758 (1985) (characterizing the Fourth Amendment as
protecting expectations of privacy, “the most comprehensive of rights and the right most
valued by civilized men”).
Even if invasion of privacy were not a harm recognized as redressable through a
common law tort claim, it would meet the requirement of concreteness as interpreted by
Spokeo because Congress so clearly identified it as a legally cognizable harm. According
to the Spokeo majority,“because Congress is well positioned to identify intangible harms
that meet minimum Article III requirements, its judgment is also instructive and important.
Thus, we said in Lujan that Congress may ‘elevat[e] to the status of legally cognizable
injuries concrete, de facto injuries that were previously inadequate in law.’” Spokeo at
1549.
Protection of consumers’ privacy rights was clearly foremost in Congress’s mind
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when it enacted the telephone call restrictions of the TCPA. The Congressional findings
accompanying the TCPA repeatedly stress the purpose of protecting consumers’ privacy.
For example:
(5)
Unrestricted telemarketing, however, can be an intrusive invasion of
privacy and, when an emergency or medical assistance telephone line
is seized, a risk to public safety.
(6)
Many consumers are outraged over the proliferation of intrusive,
nuisance calls to their homes from telemarketers.
****
(9)
Individuals’ privacy rights, public safety interests, and commercial
freedoms of speech and trade must be balanced in a way that
protects the privacy of individuals and permits legitimate telemarketing
practices.
(10)
Evidence compiled by the Congress indicates that residential
telephone subscribers consider automated or prerecorded telephone
calls, regardless of the content or the initiator of the message, to be
a nuisance and an invasion of privacy.
****
(12)
Banning such automated or prerecorded telephone calls to the home,
except when the receiving party consents to receiving the call or when
such calls are necessary in an emergency situation affecting the
health and safety of the consumer, is the only effective means of
protecting telephone consumers from this nuisance and privacy
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invasion.
(13)
While the evidence presented to the Congress indicates that
automated or prerecorded calls are a nuisance and an invasion of
privacy, regardless of the type of call, the Federal Communications
Commission should have the flexibility to design different rules for
those types of automated or prerecorded calls that it finds are not
considered a nuisance or invasion of privacy, or for noncommercial
calls, consistent with the free speech protections embodied in the First
Amendment of the Constitution.
(14)
Businesses also have complained to the Congress and the Federal
Communications Commission that automated or prerecorded
telephone calls are a nuisance, are an invasion of privacy, and
interfere with interstate commerce.
Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) (found as a note to 47 U.S.C. § 227).
As the Act’s sponsor, Senator Hollings, emphasized: “Computerized calls are the
scourge of modern civilization. They wake us up in the morning; they interrupt our dinner
at night; they force the sick and elderly out of bed; they hound us until we want to rip the
telephone right out of the wall.” 137 Cong. Rec. 30,821–30,822 (1991).
Thus, Congress repeatedly identified the intangible harm of invasion of privacy as
one of its primary concerns when it enacted the TCPA. As the Court noted in Spokeo, its
judgment that this harm is legally cognizable should be given great weight.
A second type of intangible harm suffered by plaintiff by the unwanted calls is
intrusion upon and occupation of the capacity of the plaintiff’s cell phone. The harm
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recognized by the ancient common law claim of trespass to chattels — the intentional
dispossession of chattel, or the use of or interference with a chattel that is in the
possession of another, is a close analog for a TCPA violation. See Restatement (Second)
of Torts § 217 (1965). As noted in Spokeo, the harm can be actionable even if it is “difficult
to prove or measure.” Spokeo at 1549.
A number of courts have held that temporary electronic intrusion upon another
person’s computerized electronic equipment constitutes trespass to chattels. See, e.g.,
Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238, 249 (S.D. N.Y. 2000) (intruding
electronically into business’ database to harvest e-mail addresses, without authorization,
causes harm by reducing the system’s capacity; “Although Register.com’s evidence of any
burden or harm to its computer system caused by the successive queries performed by
search robots is imprecise, evidence of mere possessory interference is sufficient to
demonstrate the quantum of harm necessary to establish a claim for trespass to chattels”),
aff’d, 356 F.3d 393 (2d Cir. 2004); America Online, Inc. v. Nat’l Health Care Discount,
Inc., 121 F.Supp.2d 1255 (N.D. Iowa 2000); America Online, Inc. v. LCGM, Inc., 46
F.Supp.2d 444 (E.D. Va. 1998); Hotmail Corp. v. Van$ Money Pie, Inc., 1998 WL
388389 (N.D. Cal. Apr. 16, 1998); America Online, Inc. v. IMS, 24 F.Supp.2d 548 (E.D.
Va. 1998) (granting summary judgment against spammer on trespass to chattels and other
claims); CompuServe, Inc. v. CyberPromotions, Inc., 962 F.Supp. 1015, 1022 (S.D. Ohio
1997) (issuing preliminary injunction against spammer on theory of trespass to chattels; “A
plaintiff can sustain an action for trespass to chattels, as opposed to an action for
conversion, without showing a substantial interference with its right to possession of that
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chattel.”); School of Visual Arts v. Kuprewicz, 771 N.Y.S.2d 804 (N.Y. Sup. Ct. 2003)
(facts alleged constituting elements of trespass to chattels claim). See also Microsoft
Corp. v. Does 1–18, 2014 WL 1338677, at *9–10 (E.D. Va. Apr. 2, 2014) (“The
unauthorized intrusion into an individual’s computer system through hacking, malware, or
even unwanted communications supports actions under these claims”; use of “botnet” to
access computers and servers without authorization states claim for trespass to chattels).
Courts have applied this tort theory to the very actions alleged here — unwanted
telephone calls. Czech v. Wall St. on Demand, 674 F.Supp.2d 1102, 1122 (D. Minn.
2009) (declining to dismiss cell phone owner’s trespass to chattels claim against sender
of unwanted text messages); Amos Financial, L.L.C. v. H&B&T Corp., 2015 WL
3953325, at *8 (N.Y. Sup. Ct. June 29, 2015) (occupying memory of answering machine
and interfering with unencumbered access to phone would have been trespass to chattels
if proven). Even if the consumer does not answer the call or hear the ring tone, the mere
invasion of the consumer’s electronic device can be considered a trespass to chattels, just
as “plac[ing a] foot on another’s property” is trespass. Spokeo, at 1551 (Thomas, J.,
concurring).
Thus, the harm caused by unwanted robocalls to cell phones has a close
relationship to the harm recognized by this ancient common law tort — a tort that protects
fundamental property rights. Indeed, the TCPA can be viewed as merely applying this
common law tort to a 21st-century form of personal property and a 21st-century method of
intrusion. Applying this ancient tort to these calls and making redress more readily
available is particularly appropriate since electronic intrusion is so much easier, and so
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much more readily repeated, than physical misuse of a chattel.
The Eleventh Circuit has recognized that “the occupation of the recipient’s telephone
line and fax machine” is a sufficient injury-in-fact for a TCPA claim asserting violations of
the statute’s junk fax provisions. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris,
D.D.S., P.A., 781 F.3d 1245, 1250–1251 (11th Cir. 2015) (occupation of fax machine for
one minute is sufficient, even though there was no evidence that anyone ever printed or
saw the faxes). Several district courts have applied this same reasoning to the occupation
of telephone lines and telephones caused by ATDS calls. This pre-Spokeo decision is
consistent with Spokeo and supports the finding that this harm is concrete.
A final intangible harm that the illegal calls caused here is that they required the
plaintiff to tend to them and wasted the plaintiff’s time. The first post-Spokeo decision to
address the TCPA squarely holds that wasting the recipient’s time is a concrete injury that
satisfies Article III:
Here, the court is satisfied that plaintiffs’ allegations demonstrate “concrete
injury” as defined in Spokeo. In Spokeo, the “injury” plaintiffs incurred was
arguably merely procedural and thus non-concrete. In contrast, the TCPA
and [state law] violations alleged here, if proven, required plaintiffs to waste
time answering or otherwise addressing widespread robocalls. The use of
the autodialer, which allegedly enabled defendants to make massive
amounts of calls at low cost and in a short period of time, amplifies the
severity of this injury. As Congress and Washington State’s legislature
agreed, such an injury is sufficiently concrete to confer standing.
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Booth v. Appstack, Inc., 2016 WL 3030256, *5 (W.D. Wash. May 25, 2016).
A number of pre-Spokeo decisions have also recognized that lost time is an
adequate injury-in-fact in TCPA and other cases. TCPA cases include Leung v. XPO
Logistics, Inc., 2015 WL 10433667, at *4 (N.D. Ill. Dec. 9, 2015) (“Leung alleges that he
lost time in responding to XPO’s call. … That is enough, so XPO’s motion must be
denied.”); Martin v. Leading Edge Recovery Solutions., L.L.C., 2012 WL 3292838, at
*3-4 (N.D. Ill. Aug. 10, 2012) (“[plaintiffs suffered an injury in fact] because they had to
spend time tending to unwanted calls”). Courts reach the same conclusion outside the
context of the TCPA. See, e.g., Freedom From Religion Foundation, Inc. v. Obama,
641 F.3d 803, 807 (7th Cir. 2011) (“What did provide standing, we held, is that the plaintiffs
had altered their daily commute, thus incurring costs in both time and money, to avoid the
unwelcome religious display.”); Rex v. Chase Home Finance, L.L.C., 905 F.Supp.2d 1111
(C.D. Cal. 2012) (“a plaintiff suffers an injury sufficient to establish Article III standing where
she alleges that she lost time spent responding to the defendant’s wrongful conduct and
the lost time is at least indirectly attributable to the defendant’s actions.”).
When it enacted the TCPA, Congress repeatedly emphasized the nuisance aspect
of robocalls, showing that it considered the interruptions that they cause and the time they
cause consumers to waste to be one of the harms it sought to remedy. As noted above,
Senator Hollings made this clear: “They wake us up in the morning; they interrupt our
dinner at night; they force the sick and elderly out of bed.” 137 Cong. Rec. 30,821–30,822
(1991). Congress was also mindful of protecting consumers from the burdens they face
when dealing with unwanted calls. One of its findings was that “[t]echnologies that might
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allow consumers to avoid receiving such calls ... place an inordinate burden on the
consumer.” Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) (found as a note to 47 U.S.C. §
227). Courts should give weight to Congress’s identification of these harms and should
determine that they meet the requirement of concreteness.
Spokeo also holds that a risk of harm can also be concrete enough to satisfy Article
III. Spokeo at 1549. Unwanted calls meet this standard too, as they cause a risk of injury
due to interruption and distraction. “Driving while distracted” due to a cell phone call is a
common cause of automobile accidents: the National Highway Traffic Safety Administration
found that cell phone use contributed to 995 fatalities, or 18% of all fatalities, in distractionrelated
crashes
in
2009.
NHTSA,
Distracted
Driving
2009,
http://www-
nrd.nhtsa.dot.gov/Pubs/811379.pdf.
A large number of pre-Spokeo cases, applying the principles outlined above, have
held that unwanted robocalls cause particularized and concrete harm, so that a plaintiff
asserting a TCPA claim has Article III standing. See, e.g. Weisberg v. Kensington
Professional and Associates L.L.C., 2016 WL 1948785, at *2–3 (C.D. Cal. May 3, 2016)
(“Plaintiff here does not allege statutory standing, or standing based on the mere alleged
violation of a federal statute. Instead, Plaintiff states his theory of actual, individual,
concrete injury in the FAC: Defendant illegally contacted Plaintiff and Class members via
their cellular telephones thereby causing Plaintiff and Class members to incur certain
charges or reduced telephone time for which Plaintiff and Class members had previously
paid by having to retrieve or administer messages left by Defendant during those illegal
calls, and invading the privacy of said Plaintiff and Class members. (FAC ¶ 28.) The
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invasion of privacy and the allegation that the illegal calls cost Plaintiff and the class
money-financial harm-are not speculative future injuries or injuries based on the violation
of rights provided in a statute. ... [I]n this case, Plaintiff has alleged an invasion of his
privacy and monetary damages.
These allegations are much more concrete and
particularized than those alleged in Spokeo and have been accepted as actual injuries in
other cases”); Haysbert v. Navient Solutions, Inc., 2016 WL 890297 (C.D. Cal. Mar. 8,
2016) (allegations that calls caused stress and embarrassment and interrupted business
and personal interactions are sufficient for Art. III standing);
Abante Rooter and
Plumbing, Inc. v. Birch Communications, Inc., 2016 WL 269315, at *3 (N.D. Ga. Jan.
7, 2016) (noting Congress’s concern that autodialers tie up recipients’ telephone lines; “To
establish standing, Plaintiff need only allege that its cellular telephone line was occupied
by an unsolicited call in violation of the TCPA. ... The invasion of this statutory right
established by the TCPA is itself a concrete harm); Jamison v. Esurance Insurance
Services, Inc., 2016 WL 320646, at *3 (N.D. Tex. Jan. 27, 2016) (“Here, Jamison alleged
that when Esurance violated the TCPA, it caused her to incur cellular telephone charges
or to reduce her previously paid-for cellular telephone time, and that it invaded her privacy.
Doc. 7, Pl.’s First Am. Compl. ¶ 49. At this stage, this pleading is sufficient to establish an
injury in fact.”); King v. Time Warner Cable, 113 F.Supp.3d 718 (S.D. N.Y. 2015) (“The
legislative history of the TCPA makes clear that the provision against autodialing was
drafted to protect ‘consumers who pay additional fees for cellular phones, pagers, or
unlisted numbers [and] are inconvenienced and even charged for receiving unsolicited calls
from automatic dialer systems.’ ... In receiving 163 unsolicited calls, Plaintiff clearly
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experienced the very sort of inconvenience against which Congress sought to protect her.
She is entitled to seek compensation for violations of this right, regardless of whether she
suffered monetary damages.”); Leung v. XPO Logistics, Inc., 2015 WL 10433667, at *4
(N.D. Ill. Dec. 9, 2015); Schumacher v. Credit Protection Ass’n, 2015 WL 5786139, at
*5 (S.D. Ind. Sept. 30, 2015) (“We agree with CPA 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,’ and that an interest in statutory damages cannot be the sole
injury to satisfy Article III requirements, but that is not what has happened here. … Here,
Mr. Schumacher’s TCPA-created right to privacy was invaded by repeated automated calls
from CPA. ‘Congress referred to the interest protected by the TCPA as a “privacy” interest,
noting that “[e]vidence ... indicates that residential telephone subscribers consider
automated or prerecorded telephone calls, regardless of the content or the initiator of the
message, to be a nuisance and an invasion of privacy.”’”);
Wallace v. Enhanced
Recovery Co., L.L.C., 2015 WL 5455937, at *5 (E.D. N.C. Sept. 16, 2015) (use of
plaintiff’s phone for a period of time is sufficient; “Under the TCPA, and as relevant to this
case, an injury-in-fact may be established where owner of the telephone number, suing as
plaintiff, demonstrates that he or she lost the use of his or her cellular telephone.”);
Ikuseghan v. MultiCare Health System, 2015 WL 4600818 (W.D. Wash. July 29, 2015)
(using up cell phone minutes and invading privacy create Art. III standing); Boise v. ACE
USA, Inc., 2015 WL 4077433, at *3 (S.D. Fla. July 6, 2015) (“Thus, Mr. Boise does not
need to ‘allege that he wanted to use his phone for another purpose but could not do so.’
... To establish standing, Mr. Boise needs to allege only that his line was occupied by an
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unsolicited call in violation of the TCPA. The statute presumes that the violation was
‘intrusive’ and ‘potentially dangerous,’ and accordingly includes a private right of action to
rectify the harm.”); Meyer v. Bebe Stores, Inc., 2015 WL 431148, (N.D. Cal. Feb. 2, 2015)
(invasion of privacy sufficient to confer standing even though plaintiff does not allege she
incurred any carrier charges for the specific text message at issue); Martin v. Leading
Edge Recovery Solutions, L.L.C., 2012 WL 3292838, at *3 (N.D. Ill. Aug. 10, 2012).
This Court has located one additional post-Spokeo decision. In Rogers v. Capital
One Bank (USA), N.A., 2016 WL 3162592 (N.D. Ga. June 7, 2016), the Court found that
a violation of the TCPA was a concrete injury, stating:
Here, the Plaintiffs alleges that the Defendant made unwanted phone calls
to their cell phone numbers, in violation of the TCPA. As the Eleventh Circuit
has held, a violation of the TCPA is a concrete injury. Because the Plaintiffs
allege that the calls were made to their personal cell phone numbers, they
have suffered particularized injuries because their cell phone lines were
unavailable for legitimate use during the unwanted calls. The Plaintiffs have
alleged sufficient facts to support standing.
Rogers *2, citing Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781
F.3d 1245, 1252 (11th Cir. 2015).
For the reasons stated above, the Motion to Dismiss Pursuant to Rule 12(b)(1) or
in the Alternative, Motion to Stay Pending Supreme Court Review [Doc. 71] is DENIED.
As a final matter, this Court notes that this matter was stayed pending resolution of
Spokeo. As the parties are keenly aware, the Supreme Court handed down its ruling on
17
Case 5:15-cv-00101-JPB-JES Document 128 Filed 06/30/16 Page 18 of 18 PageID #: 661
that matter on May 16, 2016. Although some would argue the matter was not technically
resolved as it was remanded based on the Ninth Circuit’s incomplete standing analysis, this
Court has expressed its position herein that this matter has effectively been resolved.
Accordingly, to avoid any confusion, this Court hereby LIFTS the stay.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: June 30, 2016.
18
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