Spokeo Injury Requirement May Not Be TCPA Silver Bullet Some Had Predicted, But Nonetheless Dooms Claims of Serial Plaintiff
While many legal analysts predicted the potential demise of TCPA litigation in the wake of the Supreme Court’s Spokeo v. Robins decision in May, as it turns out with all things TCPA, the reality looks to be a bit more nuanced, though the Spokeo decision does appear to pose some particular challenges for serial TCPA plaintiffs. In Spokeo, the Supreme Court held that Article III standing requires a plaintiff to show injury that is both “concrete” and “particularized.” For TCPA plaintiffs, the issue post- Spokeois whether the plaintiff can show that they suffered concrete injury as a result of a TCPA violation, beyond the statutory violation itself.
In a prescient order pre-Spokeo anticipating how the Supreme Court would rule, a California district court in Henderson v. United Student Aid Funds, Inc. declined to stay the case pending decision in Spokeo, finding that the plaintiff could show a number of concrete harms from the TCPA violation. More recently, in a series of Post-Spokeo cases, plaintiffs have had little difficulty, with one exception, satisfying courts that unlawful robocalls can result in a concrete injury.
In late May, a federal court in Booth v. Appstack found that time wasted spent answering or addressing robocalls is enough for a concrete injury. In June, a Georgia district court in Rogers v. Capital One Bank (USA) found that a violation of the TCPA was a concrete injury because the busy plaintiff’s cell phone lines were unavailable during the time of the unwanted call. And most recently in Diana Mey v. Got Warranty Inc., a West Virginia district court held that receiving an unwanted robocall could cause a concrete harm by causing a monetary injury by using cell phone minutes from a limited plan or causing the consumer to incur charges for a call. The court also found sufficiently concrete the alleged injury caused by increased call activity from depletion of a cell phone’s battery, and the resulting cost to recharge the phone. As these cases illustrate, the “concrete” and “particularized” injury required for a TCPA violation to be actionable after Spokeo appears to be a fairly low hurdle, but it is a hurdle nonetheless.
Such was the case for a serial TCPA plaintiff who was recently tripped up by the Spokeo concrete and particularized injury requirements. In Stoops v. Wells Fargo Bank, N.A. the Western District of Pennsylvania found that a “professional plaintiff” who admitted to filing TCPA actions “as a business” had not suffered an injury-in-fact from calls alleged to violate the TCPA, and therefore lacked Article III standing sufficient to bring a claim. In Stoops, the plaintiff testified that she had filed at least eleven TCPA claims in the Western District and admitted that she had only purchased cell phones and minutes to receive more calls and enable more lawsuits. The court found that the plaintiff had not suffered a violation of her legally protected privacy right interests because she was filing TCPA actions as a business. Nor did she suffer economic injury, since she was purchasing cell phones and minutes to receive calls that enabled her TCPA suits, and it could hardly be said that calls she was hoping to receive caused her actual economic harm.