District Court (Cal.) Says Debt Collection Calls Are Different than Invasive Telemarketing Calls; Follows Romero to Deny Standing to TCPA Plaintiff Who Received Debt Collection Calls

The Ninth Circuit’s decisions since Romero do not require a different outcome. Plaintiff relies extensively on the Ninth Circuit’s recent opinion in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017), as supporting the existence of Article III standing here. Plaintiff’s reliance is misplaced. Van Patten addressed whether the recipient of telemarketing texts suffered a concrete injury in fact sufficient to confer Article III standing for a TCPA claims. Van Patten, however, did not hold that receipt of any telephone call satisfies the concrete injury in fact requirement for standing to assert TCPA claims. To the contrary, the Ninth Circuit specified that “[t]he TCPA establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent.” Van Patten, 847 F.3d at 1043 (emphasis added).  Elsewhere in the Van Patten opinion, the Ninth Circuit specified that the “certain types of phone calls and texts” that give a recipient standing to assert a TCPA violation are those made by telemarketers, noting that “in enacting the TCPA, Congress made specific findings that ‘unrestricted telemarketing can be an intrusive invasion of privacy’ and are a ‘nuisance,’ ” and that “Congress sought to protect consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements.” Id. (emphasis added). Therefore, “Congress aimed to curb telemarketing calls to which consumers did not consent by prohibiting such conduct and creating a statutory scheme giving damages if that prohibition was violated.” Id. (emphasis added). Based on this Congressional intent, the Ninth Circuit held that the recipients of unsolicited telemarketing calls have suffered a concrete injury in fact sufficient to confer Article III standing to bring a claim under the TCPA. Id.  In light of the Ninth Circuit’s determination that the TCPA was crafted to protect consumers’ concrete interests in avoiding invasions of privacy and nuisances attributable to unsolicited telemarketing calls and texts, the question becomes whether the SAC alleges TCPA “violations that actually harm, or at least that actually create a ‘material risk of harm’ to, this concrete interest.” Robins v. Spokeo, Inc., 867 F.3d 1108, 1115 (9th Cir. 2017). The SAC does not satisfy this requirement. All of the calls at issue here relate to Ocwen’s efforts to collect a debt and do not relate to telemarketing. Calls from debt collectors are undoubtedly unwanted, stressful, and frustrating, but the TCPA was not intended to protect any concrete interests associated with calls from debt collectors or creditors. As a result, Ocwen’s use of an ATDS to contact Plaintiff’s cellular telephone in connection with its efforts to collect a debt was “a bare procedural violation of the [TCPA] that is ‘divorced from’ the real harms that [the TCPA] is designed to prevent.” Robins, 867 F.3d at 1115. Accordingly, any harms alleged in the SAC are not injuries in fact that give Plaintiff standing to assert claims under the TCPA.