Allegedly Deficient Opt-Out Language in Fax Did Not Give Rise to a Concrete Injury Under Spokeo

We’ve previously reported on the D.C. Circuit’s March 31 decision, which held that “the FCC’s 2006 Solicited Fax Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. FCC, No. 14-1234, Slip. Op. at 4 (D.C. Cir. 2017). And as we recently discussed, the plaintiff intervenors in that case have sought a rehearing en banc. Given the significance of the D.C. Circuit’s decision in TCPA class actions, it would not be a surprise if the en banc petition is just the beginning of the plaintiffs’ bar’s efforts to attack the D.C. Circuit’s decision. While the D.C. Circuit’s ruling is welcome news to defendants in TCPA actions, the Eastern District of Missouri recently dealt another blow to the plaintiffs’ bar. In that regard, shortly before the D.C. Circuit’s ruling, a district court held that an allegedly deficient opt-out notice in a fax the plaintiff invited did not give rise to a concrete injury under Spokeo, and dismissed the case for lack of Article III standing. St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 4:15-CV-517 RLW, 2017 U,S., Dist, LEXIS 39411 (E.D. Mo. Mar. 20, 2017). Continue reading

Second Circuit Affirms Denial of Certification Because Putative Class is Unascertainable, but Holds Receipt of Phone Calls Confers Standing

Last week, the Second Circuit, in Leyse v. Lifetime Entertainment Servs., LLC, affirmed the denial of class certification in a putative TCPA prerecorded message class action for lack of an ascertainable class. (We previously blogged about this district court decision.) Lifetime, concerned that viewership of its hit show “Project Runway” would suffer due to a channel change, hired a third-party vendor, OnCall Interactive, to contact New York City residents with a prerecorded message from the show’s host informing potential viewers of the channel change. Leyse v. Lifetime Entertainment Servs., LLC, No. 13-cv-5794, 2015 WL 5837897, at *1 (S.D.N.Y. Sept. 22, 2015). OnCall, in turn, purchased a list of phone numbers from an unknown third-party vendor; Lifetime never obtained that list. Id. at *2. Continue reading

Central District of California Dismisses TCPA Claims Due to a Lack of Traceability

One of our recent articles discussed how federal courts have analyzed the “traceability” element of Article III in TCPA cases. Specifically, we noted that two federal courts had cited Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) in dismissing claims because the alleged injuries were not “traceable to” (i.e., caused by) the purported violations. See Ewing v. SQM US Inc., No. 16-1609, 2016 U.S. Dist. LEXIS 143272 (S.D. Cal. Sept. 29, 2016); Romero v. Dep’t Stores Nat’l Bank, No. 15-0193, 2016 U.S. Dist. LEXIS 110889 (S.D. Cal. Aug. 5, 2016). In their view the “violation” was not the act of dialing a number, but rather the act of dialing a number with an ATDS. Because the plaintiffs’ alleged injuries would have been the same if the defendants had dialed their numbers manually, the courts found that the plaintiffs lacked Article III standing because their alleged injuries were not traceable to the use of an ATDS. Although the cases involved only one or two calls, the courts did not limit their traceability analyses to that context. Nevertheless it remained unclear whether this rigorous approach to traceability would be applied more broadly in other contexts. Continue reading

Ninth Circuit Rules on Standing, Revocation of Consent

In a closely-watched appeal, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment on claims alleging that text messages were sent in violation of the TCPA and California’s Unfair Competition Law (“UCL”). The Ninth Circuit held that the receipt of a text message was sufficient to confer standing upon plaintiff for purpose of his TCPA claim, but insufficient to confer standing as to his UCL claim. The Court otherwise affirmed the summary disposition of plaintiff’s claim on the ground that plaintiff had not clearly shown his alleged revocation of consent to receive defendants’ text messages. Continue reading

Central District of California Holds That Insurance Renewal Notifications Are Not Telemarketing Under the TCPA

The Central District of California recently granted summary judgment to a health insurer after finding that a pre-recorded message delivered to the insured’s cell phone reminding her to review her health plan options for the coming year was not telemarketing. Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. 16cv108 (C.D. Cal. Jan. 13, 2017), ECF No. 73.

In Smith, the plaintiff completed an application for health insurance through California’s Affordable Care Act Healthcare Marketplace, Covered California. As part of that application process, Plaintiff provided her cell phone number as “the best number at which to contact her.” As required by law, the insurance was set to automatically renew for 2016, and in 2015, Blue Shield attempted to contact Smith by sending written materials to her mailing address (as also required by law) to inform her of the changes to her plan and provide her with alternatives. Plaintiff’s materials, however, were returned to Blue Shield as undeliverable. As with other insureds whose materials were returned, Blue Shield followed up with a pre-recorded message stating in relevant part: “This is an important message from Blue Shield of California. It’s time to review your 2016 health plan options and see what’s new. Earlier this month, we mailed you information about your 2016 plan and benefit changes. It compares your current health plan to other options from Blue Shield. You can also find out more online at blueshieldca.com. If you have not received your information packet in the mail, or if you have any questions, please call the number on the back of your member ID card.” Plaintiff received the call on December 3, 2015; on December 6, 2015, she completed an application for a different insurance plan for the 2016 year. Continue reading

Reconsidering The Traceability Element of Constitutional Standing

In TCPA Blog’s latest column for Law360, Michael Daly, Justin Kay and Victoria Andrews addressed the issue of an alleged injury’s traceability to an alleged TCPA violation, which was recently highlighted in Romero v. Dep’t Stores Nat’l Bank and Ewing v. SQM US Inc. The United States District Court of the Southern District of California dismissed both cases based on a lack of constitutional standing because the alleged injuries could not be specifically traced back to the use of an Automatic Telephone Dialing System (“ATDS”). The decisions explained that, if the alleged injury would have been the same had the calls been dialed manually, then it could not be traced to use of an ATDS:

The court reasoned that “Mr. Ewing would have been no better off had Defendants dialed his number manually” since “[h]e would have had to expend the same amount of time answering and addressing Defendants’ manually dialed telephone call and would have incurred the same amount of battery depletion,” and cited McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998) for the proposition that “‘[a] plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.’” Id. at 5:4-12. Because the plaintiff “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA,” he lacked “standing to make a claim for the TCPA violation here.” Id. at 4:14-16.

The column examines the Romero and Ewing decisions and explores whether other courts will accept this defense in future TCPA cases.

Read “Reconsidering ‘Traceability’ Element of TCPA Standing.”

Class Actions After Spokeo

At last week’s annual meeting of the Business Law Section of the American Bar Association, TCPA Blog’s Michael Daly participated in a panel discussion that examined how the Supreme Court’s recent decision in Spokeo, Inc. v. Robins is affecting class action litigation under the TCPA, the FCRA, and other recurring “gotcha” statutes. The panel explored a number of interesting issues with which courts have been grappling in TCPA cases, for example whether a plaintiff has a “concrete” harm for purposes of Article III if she received a fax without an opt-out notice, received a solitary call or text, or received calls or texts on phones that she had purchased for the specific purpose of receiving errant calls and texts to recycled numbers—all of which are all too common in TCPA litigation. The panel also examined how the decision will affect not only jurisdiction but also certification, specifically whether courts should certify classes if any harm involved is inherently individualized. The panel was moderated by Katherine Armstrong, who worked at the FTC for more than thirty years on FCRA initiatives and other consumer protection issues.

Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages

Yesterday the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, in which it was asked whether plaintiffs have Article III standing if they allege a bare violation of a statute (i.e., an injury in law) but no concrete harm (i.e., an injury in fact). Six of the eight sitting Justices agreed that an injury in law alone is insufficient and that plaintiffs must plead and prove concrete harm in order to satisfy Article III. Continue reading

Supreme Court Issues Decision in Spokeo, Inc. v. Robins

This morning the Supreme Court issued its highly anticipated decision in Spokeo, Inc. v. Robins, which vacates the Ninth Circuit’s decision and remands for further proceedings.  We are reviewing the majority opinion from Justice Alito (in which Justices Roberts, Thomas, Breyer, and Kagan joined), the concurring opinion from Justice Thomas, and the dissenting opinion from Justice Ginsburg (in which Justice Sotomayor joined), and will report back shortly.

Supreme Court Hears Oral Argument in Tyson Foods, Inc. v. Bouaphakeo

On Tuesday the Supreme Court heard oral argument in Tyson Foods, Inc. v. Bouaphakeo, which concerns (among other things) whether courts can certify classes that are defined in a way that would include people who do not have Article III standing. For those who were unable to attend the argument, a transcription of the argument is available here.