CEB Prac. Guide § 2B.11: Standing

In Franklin v. DePaul University, No. 16 C 8612, 2017 WL 3219253 (N.D. Ill. July 28, 2017), Judge Lee allowed a TCPA text message claim to proceed past the pleading stage. DePaul nevertheless asks the Court to ignore Franklin's allegation that he never gave prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a motion to dismiss.”… Read More

In Kalmbach v. National Rifle Association of America, Case No. C17-399-RSM, 2017 WL 3172836 (W.D. Wash. July 26, 2017), Judge Martinez rejected the Romero standing argument premised on the argument that manually dialed and automatically dialed calls are equally annoying. Defendants argue Ms. Kalmbach lacks standing to bring a claim under the WADAD for lack of an injury because “Kalmbach… Read More

In Caruso v. Merchant's Credit, 2017 WL 2972415, at *3 (S.D.Cal., 2017), the District Court found limited standing for a TCPA plaintiff. Further, although unwanted telephone calls can create an actual, albeit intangible, injury sufficient to constitute standing, unwanted telephone calls to a relative—even a mother—do not. See Olney v. Progressive Cas. Ins. Co., 993 F. Supp. 2d 1220, 1225… Read More

Well, they didn't actually use the word "devastation".  In Susinno v. Work out World, Inc., 2017 WL 2925432, at *4 (C.A.3 (N.J.), 2017), the Court of Appeals for the Third Circuit held that: Traditionally, a plaintiff's “privacy is invaded” for the purpose of an intrusion upon seclusion claim by telephone calls “only when [such] calls are repeated with such persistence… Read More

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… Read More

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… Read More

In Lemieux v. Lender Processing Center, 2017 WL 1166430, at *3–4 (S.D.Cal., 2017), the District Court addressed whether a TCPA plaintiff had Art. III standing. Finally, in Romero v. Department Stores National Bank, No. 15-cv-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016), the court began from the premise that “[a] plaintiff cannot have suffered an injury in fact as… Read More

In Romero v. Department Stores National Bank, 199 F.Supp.3d 1256, 1265 (S.D. Cal. 2016), the California District Court held that a TCPA plaintiff must show that their injury from autodialed calls was substantively different than had the calls been manually dialed; “Moreover, the specific facts of this case reveal that any harm suffered by Plaintiff is unconnected to the alleged… Read More

In St. Louis Heart Center, Inc. v. Nomax, Inc., 2017 WL 1064669, at *2 (E.D.Mo., 2017), Judge White dismissed a TCPA class action because the class representative lacked standing. The Court agrees that SLHC has not alleged a concrete and particularized injury arising from the alleged deficiency in the opt-out notice. Spokeo,, 136 S. Ct. at 1548. Further, the Court… Read More

In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff's claim against the insurer.  Judge Snyder also said that dual purpose text messages can trigger the TCPA's written consent requirement.… Read More

In Freeman v. Wilshire Commercial Capital LLC, 2017 WL 714389, at *1 (E.D.Cal., 2017), Judge Shubb rejected the argument that a TCPA plaintiff did not have Article III standing. The Ninth Circuit's opinion in Van Patten v. Vertical Fitness Group, No. 14-55980, 2017 WL 460663, ––– F.3d –––– (9th Cir. 2017) is dispositive. The Van Patten court found that, in… Read More

In Toldi v. Hyundai Capital America, 2017 WL 736882, at *2–3 (D.Nev., 2017), Judge Gordon found that a TCPA plaintiff had standing to sue, and declined to stay the proceedings pending the outcome of the ACA Int'l decision. A vast number of cases have addressed whether a plaintiff receiving automated calls that violate the TCPA is the sort of intangible… Read More

In Brinker v. Normandin's, 2017 WL 661372, at *2–3 (N.D.Cal., 2017), Judge Davila dismissed a TCPA case due to lack of Article III standing. Several courts have found that plaintiffs who received automated unsolicited calls have standing to bring TCPA claims. For instance, in Hewlett, the court found that “near daily” calls to the plaintiff's phone over the course of a… Read More

In Van Patten v. Vertical Fitness Group, the Court of Appeals for the Ninth Circuit held that a plaintiff who alleges he received unconsented to text messages or telephone calls has standing to bring a TCPA claim against the sender. Unwanted messages invade privacy interests that are similar to interests protected at common law and to which Congress gave statutory protection.… Read More

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… Read More

In Mbazomo v. Etourandtravel, Inc., 2016 WL 7165693 (E.D. Cal. 2016), Judge Bastian found Art. III standing in a TCPA case. The Court concludes that Plaintiff’s alleged harm is sufficiently concrete to survive the motion to dismiss. The history of sustaining claims against both unwelcome intrusion into a plaintiff’s seclusion and unceasing debt-collector harassment are squarely “harm[s] that [have] traditionally… Read More

In Hunsinger v. Gordmans, Inc., 2016 WL 7048895, at *5–6 (E.D.Mo., 2016), Magistrate Judge Nocel deferred summary judgment on whether an ATDS was used until there was further discovery undertaken. The question at issue is whether the mGage platform Gordmans used to send the text messages constitutes an ATDS. The TCPA defines an ATDS as “equipment which has the capacity… Read More

In Spencer Ung v. Universal Acceptance Corporation, 2016 WL 4132244, at *2–3 (D.Minn., 2016), Judge Kyle rejected a Spokeo challenge to a TCPA claim. Although Spokeo did not determine whether the plaintiff had suffered an injury sufficient to confer standing to sue, Universal nevertheless cites it to argue Ung has not suffered a sufficient concrete injury here. Cases, however, have… Read More

In Ewing v. SQM US, Inc., 2016 WL 5846494, at *2–3 (S.D.Cal., 2016), Judge Bencivengo dismissed a TCPA claim because the alleged harm -- a charge for the call - would have been incurred whether the call was properly placed (manually) or improperly placed (autodialed).  Accordingly, it did not confer "concrete injury" sufficient to confer Article III standing. The only allegation in… Read More

In Shaun Fauley v. Drug Depot, Inc., 2016 WL 4591831, at *3 (N.D.Ill., 2016), Judge Kendall allowed a TCPA blast-fax class action past the pleadings stage based on post-Spokeo standing. Based on that holding, APS contends that the Complaint should be dismissed as it is alleges nothing more than a procedural violation of the TCPA. (See Dkt. No. 40 at… Read More