Griffith v. ContextMedia, Inc.
Filing
32
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 10/19/2016. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Christy Griffith
)
)
)
)
)
) Case No. 16 C 2900
)
)
)
)
)
)
Plaintiff,
v.
ContextMedia, Inc.
Defendant.
MEMORANDUM OPINION ORDER
In this action, plaintiff alleges that defendant violated the
Telephone
Consumer
automated
text
Protection
messages
situated individuals.
for
lack
of
to
Act
her
(“TCPA”)
and
to
by
a
sending
class
of
unwanted
similarly
Before me is defendant’s motion to dismiss
standing,
and,
in
the
alternative,
to
dismiss
plaintiff’s claims for attorneys’ fees and for injunctive relief.
The
Defendant
motion
to
insists
dismiss
that
for
of
failure
of
“[t]he
lack
standing
is
Congress
to
denied.
consider
unwanted text messages dooms Plaintiff’s claim that receipt of
unwanted
text
messages
Congress
elevated
records from 1991.
to
is
a
the
concrete
that
of
harm,”
intangible
citing
harm
that
congressional
But as defendant acknowledges, text messaging
did not even exist until 1992.
indicates
type
Congress
sought
Moreover, the legislative history
to
protect
the
“freedom
[of
consumers] to choose how their telephones are used,” 137 Cong.
Rec. S18317-01, 1991 WL 250460 (Senator Pressler), and unwanted
text messages are no less an encroachment on that freedom than
unwanted phone calls. Defendant’s argument that unsolicited phone
calls are unique in this respect is unpersuasive.
Plaintiff alleges that on at least November 29, December 23,
December 24, December 27, December 28, December 29, January 1,
January
2,
January
3,
January
5,
January
23
(multiple
times),
February 4 and February 5, she replied “STOP” in an effort to
revoke her consent to receive defendants’ automated text messages.
Plaintiff’s anger and frustration over the futility of her efforts
is apparent, see e.g., ¶ 29 (alleging that her response in one
instance was, “STOP STOP STOP FOR THE LOVE OF GOD STOP”), and will
be readily appreciated by any consumer who has ever received such
messages.
Plaintiff plainly alleges an inability to “choose how
[her] telephone [was] used,” which falls squarely within the type
of
harm
Congress
sought
to
prevent
in
enacting
the
TCPA.
Accordingly, the fact that Congress did not explicitly address
text messages in considering the TCPA is not fatal to plaintiff’s
standing.
The complaint also alleges that plaintiff “lost time reading,
tending to and responding to” the unsolicited communications, and
that the texts invaded her privacy. Courts in this district have
held, both before and after the Court’s decision in Spokeo, Inc.
2
v. Robins, 136 S. Ct. 1540 (2016), that loss of time and privacy
are concrete injuries for the purpose of conferring Article III
standing. See, e.g., Aranda v. Caribbean Cruise Line, Inc.,---F.
Supp.
3---,
2016
WL
4439935
(Kennelly,
J.);
Leung
v.
XPO
Logistics, 164 F. Supp. 3d 1032, 1037 (N.D. Ill. 2015); and Martin
v.
Leading
3292838,
Edge
at
Recovery
*3
(N.D.
Solutions,
Ill.
Aug.
No.
10,
11
C
2012)
5886,
2012
(Lefkow,
WL
J.).
Furthermore, courts in other jurisdictions have held that claims
alleging the receipt of unwanted text messages state an injury-infact under the TCPA. See, e.g., Meyer v. Bebe Stores, Inc., No.
14-cv-00267, 2015 WL 431148, at *2 (N.D. Ca. Feb. 2, 2015) (citing
Smith v. Microsoft Corp., No. 11–CV–1958, 2012 WL 2975712, at *6
(S.D. Cal. July 20, 2012) (“by alleging he received a text message
in
violation
of
the
TCPA,
[plaintiff]
has
established
a
particularized injury in satisfaction of Article III premised on
the invasion of his privacy, even absent any economic harm”)).
Nothing
reiterated
in
the
Spokeo
is
established
to
the
contrary.
principle
that
There,
a
the
plaintiff
Court
cannot
“allege a bare procedural violation, divorced from any concrete
harm, and satisfy the injury-in-fact requirement of Article III”
and emphasized that standing requires both a “particularized” and
a “concrete” injury.
136 S.Ct. at 1548-49.
The Court went on to
examine the contours of the latter requirement and explained that
while allegations of a tangible harm are generally sufficient to
3
state
a
concrete
“tangible,”
and
concrete.”
In
injury,
“concrete”
“intangible
is
injuries
not
can
synonymous
with
nevertheless
be
Id. at 1549 (citing cases).
two
thorough
and
well-reasoned
post-Spokeo
decisions
upholding the plaintiffs’ assertion of standing in a TCPA action,
Judge Kennelly explained that section 227 of the TCPA “establishes
substantive, not procedural rights to be free from telemarketing
calls consumers have not consented to receive.” Aranda, 2016 WL
4439935, at *6 (denying motion for summary judgment for lack of
standing); A.D. v. Credit One Bank, N.A., No. 14 C 10106, 2016 WL
4417077, at *5-*6 (N.D. Ill. Aug 19, 2016) (Kennelly, J.) (denying
motion to dismiss for lack of standing). Mindful of the Spokeo
Court’s observation that in conducting the standing inquiry, “it
is instructive to 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,”
138
F.3d
at
1549,
Judge
Kennelly
explained
that
the
plaintiffs’ standing was supported by the fact that “American and
English courts have long heard cases in which plaintiffs alleged
that defendants affirmatively directed their conduct at plaintiffs
to
invade
4439935,
their
at
*6;
privacy
2016
WL
and
disturb
4417077
at
their
*7.
solitude.”
Judge
2016
Kennelly
WL
also
observed that Congress “enacted the TCPA to protect consumers from
the annoyance, irritation, and unwanted nuisance of telemarketing
4
phone
calls,
concrete
granting
interests
protection
in
preserving
to
consumers’
their
rights
identifiable
to
privacy
and
seclusion.” 2016 WL 4439935, at *6; 2016 WL 4417077 at *7.
I agree with Judge Kennelly’s analysis and join the courts in
this
district
alleging
and
the
elsewhere
receipt
to
of
have
concluded
plaintiffs
unsolicited
specific,
that
telephone
communications, whether by voice or text message, have Article III
standing to pursue TCPA claims based on lost time and invasion of
privacy.
In
the
defendant
alternative
seeks
to
dismissal
dismissal
of
for
fees and injunctive relief.
plaintiff’s
lack
claims
of
for
standing,
attorneys’
This alternative request is granted
as to the claim for attorneys’ fees and denied as to the claim for
injunctive relief.
Plaintiff acknowledges that the TCPA does not
authorize attorneys’ fees but argues that because she purports to
represent a class, her claim for attorneys’ fees under the “common
fund” doctrine is appropriate under Boeing Co. v. Van Gemert, 444
U.S. 472, 478 (1980). But in Holtzman v. Turza, 828 F.3d 606, 608
(7th
class
Cir.
2016),
the
plaintiff’s
Seventh
request
explaining
that
because
Protection
Act
seek
recipients,”
they
do
Circuit
for
attorneys’
“suits
recovery
not
squarely
under
for
create
the
fees
under
Telephone
discrete
common
rejected
wrongs
funds.
This
a
TCPA
Boeing,
Consumer
to
the
holding
reiterated the conclusion the court had drawn three years earlier
5
in the same case. Holtzman v. Turza, 728 F.3d 682, 688 (7th Cir.
2013)
(“Some
class
actions
stem
from
aggregate
and
undifferentiated injuries; these create genuine common funds. But
this
action
recipient
of
stems
the
from
faxes;
discrete
it
does
injuries
not
create
suffered
by
a
fund.”).
common
each
Plaintiff does not offer any basis for believing that the Seventh
Circuit would hold differently in this case.
I am not persuaded, however, that dismissal of plaintiff’s
claim for injunctive relief is appropriate at this juncture.
plaintiff
points
out,
the
TCPA
expressly
authorizes
As
injunctive
relief, and plaintiff’s allegations—particularly those directed to
her
months-long
efforts
to
stop
defendants’
unwanted
texts—are
sufficient to entitle her to develop the factual record as to
whether injunctive relief is appropriate.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: October 19, 2016
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?