In Declue v. United Consumer Financial Services Company, 2017 WL 1400144, at *2–4 (S.D.Cal., 2017), the District Court disagreed with the standing decision in Romero.
This court also respectfully disagrees with Romero. “There is no legal rationale for [Defendant’s] argument under an Article III analysis: either a plaintiff shows a concrete and particularized harm for Article III standing because of telemarketing calls, or she does not.” LaVigne, 2016 WL 6305992, at *6; see also Lemieux v. Lender Processing Ctr., No. 16cv1850 BAS (DHB), 2017 WL 1166430, at *3–5 (S.D. Cal. Mar. 29, 2017) (rejecting the reasoning of Romero); Mbazomo v. Etourandtravel, Inc., 2016 WL 7165693 (E.D. Cal Dec. 8, 2016) (stating that Romero “improperly erodes” federal pleading standards, as a plaintiff “need not establish the entirety of their case in chief in a complaint”); Mohamed v. Off Lease Only, Inc., 2017 WL 1080342, at *3 (S.D. Fla. Mar. 22, 2017) (“I respectfully disagree with the Romero and Ewing decisions.”). At this stage, whether or not Defendant could have made the same call manually does not bear on the existence of the injury. Were it to the contrary, every defendant could escape TCPA liability by declaring that it has the capacity to manually dial the phone as many times as the plaintiff was called. Once done, no plaintiff could allege “a concrete injury caused by the use of an ATDS, as opposed to a manually dialed call” as Romero would seem to require. See 199 F. Supp. 3d at 1262. For now, it is the mere fact of the calls that allows a plaintiff to plead an injury sufficient to confer standing. See Ung v. Universal Acceptance Corp., 198 F. Supp. 3d 1036, 1039–40 (D. Minn. 2016). Any factual issue regarding the manner in which the calls were placed should be resolved on summary judgment or at trial, based on the available evidence, “but are not appropriate for the threshold stage of jurisdictional dismissal based on standing.” Cabiness v. Educ. Fin. Sols., LLC, 2017 WL 167678, at *2 (N.D. Cal. Jan. 17, 2017). Regardless, Plaintiffs did in fact allege harm that could only arise from the use of an ATDS. The FAC alleges that Defendant “used automatic dialer technology to not only initiate the calls, but also to ‘spoof’ its number,” making it more likely that Mr. DeClue would answer the call because it appeared to originate from his own area code. (Doc. No. 12 ¶¶ 26–27.) In sum, Plaintiffs have demonstrated “traceability, i.e., a causal connection between the injury and the actions complained of.” Easter v. Am. W. Fin., 381 F.3d 948, 961 (9th Cir. 2004).2
Separate from the traceability issue discussed above, courts deciding the issue post-Spokeo have continued to consistently find that the receipt of phone calls in violation of the TCPA is a concrete injury sufficient to constitute standing. See, e.g., Juarez v. Citibank, NA, 2016 U.S. Dist. Lexis 118483, at *8 (N.D. Cal. Sept. 1, 2016) (“Even a single phone call can cause lost time, annoyance, and frustration.”); Cour v. Life360, Inc., 2016 WL 4039279, at *6 (N.D. Cal. July 28, 2016) (holding that the plaintiff’s allegation of invasion of privacy from the defendant’s violation of the TCPA was sufficient concrete injury); Cabiness, 2016 WL 5791411 at *5 (stating that “unlike a statutory violation of the FCRA [as alleged in Spokeo] which may result in no harm, a statutory violation of [the TCPA] inherently presents a risk of real harm, even if that harm is difficult to prove or measure such that the statutory violation is sufficient on its own to constitute injury in fact”); Booth v. Appstack, Inc., 2016 WL 3030256, at *5 (W.D. Wash. May 25, 2016) (finding that, in contrast to the facts of Spokeo, TCPA violations alleged, if proven, required plaintiffs to waste time answering or otherwise addressing widespread robocalls); Krakauer v. Dish Network, LLC, 168 F. Supp. 3d 843, 845 (M.D.N.C. 2016) (“Telemarketing calls made in violation of the…TCPA are more than bare procedural violations;…[t]hese calls form concrete injuries because unwanted telemarketing calls are a disruptive and annoying invasion of privacy.”); A.D. v. Credit One Bank, N.A., 2016 U.S. Dist. Lexis 110393, at *17–18 (N.D. Ill. Aug. 19, 2016) (stating that the TCPA directly forbids activities that by their nature infringe the privacy-related interests that Congress has sought to protect, and therefore a violation of this substantive right is sufficient to constitute a concrete, de facto injury). This court agrees.