District Court (Cal.) Says TCPA Plaintiff Need Not Establish Art. III Standing “For Each Individual Call”

In Cabiness v. Educational Financial Solutions, LLC., 2017 WL 167678, at *2 (N.D.Cal., 2017), Judge Tygar denied a TCPA defendant’s motion to dismiss based on lack of purported Art. III Standing.

Specifically, the Defendant relies on Romero v. Dep’t Stores Nat’l Bank, 15-cv-193, 2016 WL 4184099 (S.D. Cal. 2016). ECF No. 50 at 7. In that case, the court held that the TCPA plaintiff lacked standing because she failed to establish that she was injured by each of the more than 290 calls that the Defendants made to her cell phone, noting that for each of those calls it was “possible that the recipient’s phone was not turned on or did not ring, that the recipient did not hear the phone ring, or the recipient for whatever reason was unaware that the call occurred.” Romero, 2016 WL 4184099 at *3. Based on this decision, Defendant argues that “a TCPA plaintiff must establish standing for each individual call” and demonstrate how the alleged harms “resulted from the purported use of an ATDS rather than manually dialed calls.” ECF No. 60 at 7, 13 (emphasis in original).  The Romero decision does not alter this Court’s earlier conclusion for three reasons. First, that decision is not binding on this Court. Second, the Court does not find the reasoning in that decision to be persuasive. As other courts have noted, the Romero court’s approach “ignores the existence of intangible harms that have been recognized in the legislative history and in the case law” and makes it “nearly impossible for a plaintiff to allege a private right of action under the TCPA for automated solicitation calls.” LaVigne v. First Cmty. Bancshares, Inc., No. 1:15-CV-00934-WJ-LF, 2016 WL 6305992, at *4?7 (D.N.M. Oct. 19, 2016). This Court clearly articulated its position in its previous Order, and most courts that have addressed this issue have reached the same conclusion. Id. (listing several post-Spokeo cases in which courts have held that a bare statutory violation of the TCPA constitutes a concrete injury for Article III standing purposes, noting that “[m]ost courts that have addressed this issue have sided with Plaintiff,” and describing Romero as an “outlier”). Like other courts in this district, this Court respectfully disagrees with the Romero court’s interpretation of Spokeo. See, e.g., Juarez v. Citibank, N.A., No. 16-CV-01984-WHO, 2016 WL 4547914, at *2–3 (N.D. Cal. Sept. 1, 2016). Lastly, Romero is distinguishable from this case. The Romero court looked beyond the allegations in the complaint and considered the evidence submitted by the parties because that case was “beyond the summary judgment stage.” Romero, 2016 WL 4184099 at *2. In contrast, this case involves a facial attack based solely on the Plaintiff’s allegations, which must be construed in her favor. Any factual issues regarding “[t]he number of calls Plaintiff answered, and the times these calls were made are issues that 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.” LaVigne, 2016 WL 6305992 at *7.