Massive Ringless Voicemail Class Action Allowed to Proceed in State Court After Federal Dismissal for Lack of Standing
Here’s another one of those “the Czar is always right” sort of stories. Turn away if you don’t want to hear about it.
So you’ll remember the story from about a year ago where a Defendant was let “off the hook” for 89,000 ringless voicemails that were allegedly sent without consent.
The Eleventh Circuit Court of Appeals determined that individuals receiving only a single ringless voicemail lacked standing to sue in federal court–akin to the rule with respect to the receipt of a single text message. (Again, this is in the Eleventh Circuit only–other Circuit Courts of Appeal have disagreed.)
At the time I wrote the story I urged everyone not to “get carried away.” Indeed, I expressed trepidation that folks would over read Grigorian and deploy ringless voicemails in an unsafe manner. As I said at the time:
“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.”
Well, I was right. Unsurprisingly.
The Grigorian case was re-filed in state court and–wouldn’t you know it–the state court found that the Plaintiff had standing to sue the Defendant after all, on the same claim. So although the Defendant is out of federal court, it still must face a massive ~$50MM case related to the ringless voicemails in state court.
Notably, this is the first decision I am aware of to ever directly hold that a Plaintiff who lacks standing to sue in federal court on a federal claim can still bring that claim in state court. I believe–and can’t wait to brief and advocate–that such individuals lack prudential standing to bring claims. But the state court considering Grigorian did not directly address this issue–although it did find “zone of interest” arguments to be inapplicable to suits between private parties for some reason.
As the fate of all those TCPA cases being dismissed for lack of standing is a critical metaphysical issue here in TCPAWorld– in a “where do TCPA cases go when they're dismissed, mommy?” sort of way–I’ll try to keep an eye on state court rulings addressing the issue.
You can read the full Grigorian state court ruling here: Grigorian State Ruling
And a special nod to Jacob Phillips over at NORMAND PLLC for bringing this one to my attention. Even though you’re a dark sider, I appreciate the intel!