Off the Hook: Defendant Walks Away from TCPA Liability for 89,000 Ringless Voicemail on Standing Grounds—But Let’s Not Get Carried Away
I’ve held off reporting on this one for a few days because I always try not to cause more harm than good with this (insanely popular) blog. And I am a little concerned that folks reading this are going to get some ideas into their heads that they ought not have.
First, the news:
In Grigorian v. Fca Us Llc, No. 19-15026, 2020 U.S. App. LEXIS 38370 (11th Cir. December 09, 2020) the Eleventh Circuit Court of Appeals held definitively that receipt of a single ringless voicemail does not cause Article III “concrete harm.” So it affirmed the lower court’s dismissal of a putative class action seeking recovery on behalf of 89,000 individuals who received unconsented RVM messages on their cell phones.
Translation: defendant got away with one. A really big one.
The reasoning in Grigorian—broad strokes—is that an RVM is much like a text message in that it doesn’t tie up your use of your phone for any appreciable amount of time. And sure you may have a bit of your time wasted retrieving the message, but that’s not a real “harm” under Hanna. So no TCPA class action—at least not in federal court.
So this seems like a pretty big win for the good guys. So why am I anxious about reporting it?
Well because there are already a lot of unrealistic (false?) hopes regarding the use of RVM to contact cell phones without consent swirling around out there and I don’t want to be seen as promoting the idea that RVM can be safely sued to contact cell phone subscribers without TCPA consent.
And it is true that the Grigorian defendant used RVM to contact individuals without consent and live to tell about it—for now at least, nothing (yet) prevents the case from being re-filed in state court or in another jurisdiction by a different class member—but you might not be so lucky. This is especially true if you operate outside of the Eleventh Circuit footprint—most courts shiver at the thought of permitting any number of unwanted messages to a cell phone and do not hesitate to find standing for unwanted texts, calls, or ringless voicemails.
So I pass on the good news of Grigorian with a bit of bitter herb. TCPAWorld is way too dangerous a place to hear about one case and change your outreach practices. Please do not read the case as meaning that you are safe to blast everyone with one free RVM. It will not go well. Consult your lawyer before launching any new outreach campaign.