2nd Cir. Says Recipient of Spam Text Messages Satisfied Spokeo Standing Sufficiently to Bring Class Action

In Melito v. Eperian Mktg. Sols., Nos. 17-3277-cv (L), 17-3279-cv (Con), 2019 U.S. App. LEXIS 12945, at *16-20 (2d Cir. Apr. 30, 2019), the Court of Appeals for the Second Circuit followed the 9th Circuit’s decision in Van Patten and held that the District Court had jurisdiction to address a class action because the class representative had Article III standing under Spokeo.

Experian contends that Plaintiffs lack standing because they failed to allege a “concrete” injury in fact. We disagree. “In determining whether an intangible harm,” as alleged here, “constitutes injury in fact, both history and the judgment of Congress play important roles.” Id. at 1549. To be sure, this “does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. Despite Experian’s contrary protestations, however, Plaintiffs here do not “allege a bare procedural violation, divorced from any concrete harm.” Id. First, Plaintiffs allege “the very injury [the TCPA] is intended to prevent.” See Sussino v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (internal quotation marks omitted). As noted above, “nuisance and privacy invasion” were the harms Congress identified when enacting the TCPA. Pub. L. No. 102-243, §§ 5, 12. And text messages, while different in some respects from the receipt of calls or faxes specifically  mentioned in the TCPA, present the same “nuisance and privacy invasion” envisioned by Congress when it enacted the TCPA.5 See id. Second, this injury “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American Courts.” See Spokeo, 136 S. Ct. at 1549. As both the Ninth and Third Circuits have noted, the harms Congress sought to alleviate through passage of the TCPA closely relate to traditional claims, including claims for “invasions of privacy, intrusion upon seclusion, and nuisance.” Van Patten v. Experian argues in passing that it was the FCC, not Congress, that interpreted the TCPA to cover text messages. True, but irrelevant. We need not consider the impact of the FCC’s interpretation of the TCPA, or whether the Hobbs Act bars our jurisdiction to consider that interpretation, see 28 U.S.C. §§ 2342, 2343; Carlton & Harris Chiropractic, Inc. v. PDR Network,LLC, 883 F.3d 459 (4th Cir.), cert. granted, 139 S. Ct. 478 (2018) (mem.);Nigro v. Mercantile Adjustment Bureau, LLC, 769 F.3d 804, 806 n.2 (2d Cir. 2014) (per curiam) (“Since neither party actually challenges the FCC’s interpretation of the TCPA, we need not decide the extent to which the Administrative Orders Review Act, also known as the ‘Hobbs Act,’ limits our jurisdiction to review that interpretation.”), because this argument concerns whether Plaintiffs have a cause of action under the TCPA, not whether a federal court has subject-matter jurisdiction over the action. See Lexmark Int’l, Inc. v. Static ControlComponents, Inc., 572 U.S. 118, 127 & n.4 (2014). Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017); Sussino, 862 F.3d at 351-52 (focusing on intrusion upon seclusion); see also Restatement (Second) of Torts § 652B (Am. Law Inst. 1977) (discussing intrusion upon seclusion). Neither Experian nor Bowes meaningfully contend otherwise, and we see no reason to diverge from our sister circuits on this point.  Because Plaintiffs have demonstrated a harm directly identified by Congress and of the same character as harms remediable by traditional causes of action, the district court correctly concluded that they “need not allege any additional harm beyond the one Congress has identified.” See Spokeo, 136 S. Ct. at 1549. Experian protests this conclusion at length, relying on decisions including ours in Katz v. Donna Karen Co., LLC, 872 F.3d 114 (2d Cir. 2017), and Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016). These cases, however, concern the risk of harms attendant a statutory violation. See, e.g., Katz, 872 F.3d at 116-17 (no standing to pursue Fair and Accurate Credit Transactions Act claim because defendants’ stores’ provision of receipt containing first six digits of credit card did not necessarily entail “any consequence that stemmed from the display” of those numbers); Strubel, 842 F.3d at 188-95 (distinguishing between notice deficiencies that created a concrete and personal risk of harm and those creating only a general risk of harm). Here, by contrast, the receipt of unwanted advertisements is itself the harm. Experian also contends  that even the cases on which Plaintiffs rely involved allegations of harm beyond a statutory violation. For instance, Experian observes that the plaintiff in Van Patten alleged that the text messages sent by the defendants caused “actual harm, including the aggravation that necessarily accompanies wireless spam and that consumers pay their cell phone service providers for the receipt of such wireless spam.” See Van Patten, 847 F.3d at 1041 (internal quotation marks omitted). This is inaccurate and irrelevant. First, the allegations to which Experian points concern harms that general “consumers” experienced; the only allegation of harm personal to the plaintiff that the Ninth Circuit noted was “that he received two text messages.” Id. Second, and in any event, the Ninth Circuit’s analysis in no way relied on allegations of harm beyond the statutory violations. “Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients. A plaintiff alleging a violation under the TCPA ‘need not allege any additional harm beyond the one Congress has identified.” Id. at 1043 (quoting Spokeo, 136 S. Ct. at 1549; see also Susinno, 862 F.3d at 352 (“For these reasons, we hold that Susinno has alleged a concrete, albeit [*20]  intangible, harm under the Supreme Court’s decision in Spokeo . . . . Because we so hold, we need not address her additional arguments that her various tangible injuries provide alternative grounds for standing.”).