Spokeo Decision Is Good News For TCPA Defendants

Earlier this week the United States Supreme Court issued its much anticipated decision in Spokeo, Inc. v. Robins.  The Court addressed the question of whether the Constitution requires a plaintiff to have suffered an actual injury in order to to pursue a claim in federal court for violation of a statute. Robins claimed that Spokeo, a big data company that prepared a personal profile about Robins, violated the Fair Credit Reporting Act ("FCRA") because the report inaccurately indicated that Robins was wealthy, married and had a graduate degree when that wasn't true. The FCRA requires covered business to “follow reasonable procedures to assure maximum possible accuracy of" the reports they provide. Robins filed a class-action complaint seeking to recover for himself and each class member the statutory damages and attorney's fees that the FCRA says are available when the statute has been violated. 

Although Spokeo was alleged to have violated the FCRA, and the FCRA expressly allows consumers to sue for violations, it was unclear that Robins was harmed by that violation. Spokeo sought to dismiss the case on this ground, arguing that Robins had not suffered the "injury in fact" required by the Constitution to pursue a claim in federal court. The trial court agreed and dismissed the case.  But on appeal, the Ninth Circuit reversed.  It concluded that Robins could pursue his claim because the Spokeo report was about him and the alleged violation of a statutory right was sufficient to satisfy the injury-in-fact requirement. The Supreme Court disagreed. It made clear that Congress cannot eliminate the Constitution's injury-in-fact standing
requirement by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. Rather, the plaintiff must have suffered both a concrete and particularized injury, regardless of whether a statute provides a right to sue. Because the Ninth Circuit failed to consider the need for a concrete injury in addition to the alleged statutory violation, the Court sent the case back to the Ninth Circuit for further consideration.

So why is this good news for TCPA defendants?  In short, the Spokeo ruling should mean the end of many TCPA claims. Plaintiffs often sue for violations of the TCPA even though they have not suffered any actual, concrete harm.  For example, the FCC's TCPA cellphone regulations require a prior written agreement containing specified disclosures before a business may call or text someone on their cellphone using an automatic telephone dialing system. Plaintiffs provided their cellphone numbers to businesses and consent to receive calls and texts, but then sue because the businesses' means of obtaining consent did not include the disclosures required by the FCC regulation.  These plaintiffs have suffered no actual harm--they received calls or texts they specifically requested--so their claims should be dismissed.  Similarly, the FCC's fax regulations require that specific opt-out language appear on all faxed advertisements, even ones that are sent with the consent of the faxed party.  These recipients are not harmed when they receive a faxed ad they requested, even if it fails to include all, or any of the opt out language required by the FCC.  These recipients, therefore, should be barred by Spokeo from pursuing claims for such technical violations.  

Application of Spokeo to TCPA claims arising out of unsolicited calls will likely be plaintiff specific. A plaintiff who incurs a charge on her cellphone bill because of unsolicited calls likely would have a sufficient injury for standing.  But a plaintiff who used a robocall blocking service and never received the calls would not.  If the call went through but the plaintiff's phone was in her purse, she never heard it ring, and she was not charged, I'd say there was no actual harm there either.  There are many different circumstances in which a call or text might be received or not  received, or result in a charge or no charge.  This means that  TCPA defendants should also be able to use the Spokeo decision as another argument against certification of a class.