In O’Shea v. American Solar Solution, Inc., 2017 WL 2779261 (C.D. Cal. 2017), Judge Lorenz rejected the Romero standing argument and found Article III standing for a TCPA class action plaintiff.
This Court is not bound by Romero and, like a majority of district court cases to consider the issue, disagrees with the reasoning in that decision. As the Supreme Court stated in Spokeo, the judgment of Congress on what harms constitute legally cognizable injuries merits great consideration. Spokeo, 136 S. Ct. at 1549. In enacting the TCPA, Congress noted that “[b]anning such automated or prerecorded telephone calls …is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.” Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) (found as a note to 47 U.S.C. § 227). This indicates Congressional intent was to shield the public from the harms associated with calls made by an ATDS. The holding in Romero would seem to thwart this purpose by eliminating TCPA recovery for all but the most egregious of violations. Thus, even though the facts of this case are highly analogous to those of Romero, the Court finds Plaintiff has adequately demonstrated a concrete injury. Specifically, Plaintiff has shown that Defendant called him fifteen times. (Doc. 95-4.) One call lasted almost five minutes; two calls lasted about thirty seconds; three calls lasted one second; and nine calls lasted zero seconds, indicating no answer. (Id.) During the five minute call, Plaintiff stayed on the line talking to a phone operator in the hopes of convincing Defendant to stop calling him. (Doc. 95-6, 21–22.) That this five minute effort to end Defendant’s harassment caused Plaintiff inconvenience and annoyance sufficient to constitute a concrete injury is beyond reasonable dispute. Defendant does not appear to argue with this fact. Rather, Defendant contends that, like the Plaintiff in Romero, Plaintiff here has not established standing because he has not proven that Defendant’s use of an ATDS resulted in more harm than would have occurred if Defendant manually dialed Plaintiff. This argument misses the mark. The proper inquiry is whether Plaintiff suffered any concrete harm, not whether he suffered greater harm as a result of Defendant’s decision to use an ATDS rather than manually dialing. As to the other calls, the Court finds it proper to consider them in the aggregate rather than analyzing each individual call in isolation and asking whether, standing alone, a call could constitute a concrete injury. See Juarez v. Citibank, N.A., 2016 WL 4547914 *3 (N.D. Cal. 2016); Contra Romero, 199 F. Supp. 3d at 1263. In Juarez, the court found a concrete injury where defendants used an ATDS to call the plaintiff forty-two times over twelve days. Juarez, 2016 WL 4547914, *1 (N.D. Cal. Sept. 1). The plaintiff did not consent to the calls and requested that they stop calling, to no avail. Id. at *3. Defendant’s unwanted calls, the court found, wasted the plaintiff’s “time and energy” and were an “aggravation, nuisance, and invasion of privacy” sufficient to constitute standing under Spokeo. Id. This case is on all fours with Juarez. Like in Juarez, Plaintiff here received repeated telemarketing calls from Defendant despite his repeated requests to be left alone. Each individual call, regardless of whether Plaintiff heard the phone ring or answered it, surely contributed to the unpleasantness of the experience by either disturbing Plaintiff’s peace (whether he answered the phone or simply heard it ring), draining his cell phone battery, clogging up the line, or creating a missed call history informing him that the harassment continues despite his requests that it end. Accordingly, the Court finds Plaintiff has adequately demonstrated that Defendant’s repeated calls caused him concrete injury sufficient to confer standing.