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California Federal Court Dismisses Suits for Failure to Allege Harm Traceable to Any TCPA Violation

The Southern District of California recently dismissed two Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. § 227 actions for a failure to allege any concrete injury traceable to defendants. In both actions, the court found that plaintiffs had not alleged any concrete harm traceable to defendants’ alleged violation of the TCPA.  Due to this, the court held that plaintiffs lacked standing under Spokeo v. Robins, 136 S.Ct. 1540 (2016), in which the U.S. Supreme Court held that “a bare procedural violation, divorced from any concrete harm [does not] satisfy the injury-in-fact requirement of Article III.”

In Ewing v. SQM US, Inc., No. 16-cv-1609 (S.D.Cal. Sept. 29, 2016), the plaintiff alleged that the defendants autodialed his cell phone without permission, causing him to incur a charge under his cell phone plan, “waste” time answering the phone, and drain his phone’s battery.  The plaintiff also sought to represent a class of others who had purportedly received similar phone calls.  The court held that the plaintiff lacked Article III standing.  In particular, the court ruled that the “plaintiff 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.”  The court quoted McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998), for the proposition that a “plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.” The court stated that its decision was in line with Spokeo v. Robins, 136 S.Ct. 1540 (2016), in which the U.S. Supreme Court held that “a bare procedural violation, divorced from any concrete harm [does not] satisfy the injury-in-fact requirement of Article III.”

In Romero v. Department Stores National Bank, No. 15-cv-193 (S.D.Cal. Aug. 5, 2016), the plaintiff contended that the defendants autodialed her cell phone without permission over 290 times in connection with collecting a debt.  The plaintiff answered only three calls.  The court held that under Spokeo, the plaintiff lacked Article III standing because she failed to connect any claimed injury with any specific TCPA violation.  Specifically, the court held that the plaintiff did “not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA” (emphasis added).  Thus, the court ruled that the plaintiff “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA.”

Although other courts since Spokeo have found, without extensive analysis, that TCPA violations caused plaintiffs to suffer a concrete injury sufficient to convey Article III standing, these cases did not address in any meaningful way the issue of whether this harm is traceable to a TCPA violation. Ewing and Romero are two of the first decisions to engage in this analysis.  It remains to be seen whether other courts will follow Ewing and Romero’s lead in holding that Article III requires a showing that the alleged harm resulting from a TCPA violation is traceable to defendant’s use of an ATDS.

Copyright 2019 K & L Gates

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Andrew Glass, KL Gates Law Firm, Financial Litigation Attorney
Partner

Mr. Glass is a partner resident in K&L Gates’ Boston office, and a member of the firm's Consumer Financial Services Litigation and Class Action Litigation Defense groups, with extensive experience in complex commercial litigation. Mr. Glass's practice focuses on the defense of federal and state class action litigation brought against consumer financial services, mortgage lending, and consumer credit institutions. These class actions concern challenges under federal statutes, including the Fair Housing Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Real...

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Gregory Blace, KL Gates Law Firm, Class Action Litigation Attorney
Partner

Mr. Blase is a partner in the Boston office of K&L Gates where he is a member of the firm's Class Action Litigation Defense group. Mr. Blase has experience in complex commercial litigation, and has represented mortgage lenders, servicers and other financial institutions in class action and individual suits under the Telephone Consumer Protection Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, Truth in Lending Act, Fair Housing Act, Equal Credit Opportunity Act, Real Estate Settlement Procedures Act, and various state unfair and deceptive practices statutes.

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Roger Smerage, KLGates Law Firm, Commercial Disputes Attorney
Associate

Roger Smerage is an associate in the commercial disputes group of the Boston office of K&L Gates. He concentrates his practice in class action litigation and financial institutions and services litigation. Mr. Smerage’s experience includes representing mortgage lenders, banks, loan servicers, and other consumer financial services institutions, as well as wireless telephone companies, computer software developers, and energy providers, in class action and individual litigation matters. He has represented a variety of corporate and individual clients in contract, tort...

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Eric Lee, KLGates Law Firm, Commercial Litigation Attorney
Associate

Eric Lee concentrates his practice on general civil and commercial litigation matters, with an emphasis on patent, trademark, copyright, and other complex intellectual property litigation. He also counsels clients regarding their intellectual property portfolio development through the creation, development, and leveraging of copyrights and trademarks. In addition, Mr. Lee has experience in class action litigation and consumer finance litigation, including the defense of banking, mortgage lending, and consumer financing services companies in state and federal class...

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