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
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.”
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.
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
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.
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.
Earlier this week the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, which concerns whether Congress can confer Article III standing on a plaintiff who alleges a violation of a statute (i.e., an injury in law) but no resulting harm (i.e., an injury in fact). For those who were unable to attend the argument, recordings and transcriptions of the argument are available here and here.
Defendants’ discussions of the Third Circuit’s recent decisions in Leyse v. Bank of America and Dominguez v. Yahoo have been all doom and gloom. Some of that disappointment is understandable, as the Third Circuit vacated notable defense rulings and expanded the scope of consumers who have statutory standing to file suit under the TCPA. On closer examination, however, both of the decisions offer not only a sword to plaintiffs but a shield to defendants. This is the first of two posts that will dissect those decisions and discuss their implications for the ever-growing number of defendants that are facing TCPA claims.