An Eastern District of Missouri court recently issued an opinion in Golan v. Veritas Entertainment, LLC granting class certification that adds it to the list of district courts holding that calls violating the TCPA establish concrete injuries under Spokeo. 2007 WL 193560 (E.D. Mo. Jan. 18, 2017).
In Golan, the plaintiffs claimed that defendants engaged in an advertising campaign for the movie “Last Ounce of Courage” that included calls to approximately four million residential phone numbers throughout the United States using the prerecorded voice of Governor Mike Huckabee. The calls, according to plaintiffs, violated section 227(b)(1)(B) of the TCPA, which prohibits the initiation of calls to residential telephone lines using an artificial or prerecorded voice without the called party’s prior express consent. The plaintiffs sought to certify a nationwide class defined as:
All persons within the United States to whom Defendants (or some person on Defendant’s behalf), within four years of October 3, 2012, initiated one or more telephone calls to such persons’ residential telephone lines using the recorded voice of Mike Huckabee to deliver a message as part of the above-mentioned campaign regarding the movie Last Ounce of Courage.
The plaintiffs moved to certify the class under Federal Rule of Civil Procedure 23(b)(3), which requires a court to find (1) the questions of law or fact common to class members predominate over any questions affecting only individual members, and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. There has been much discussion as to whether Spokeo, which directs that a plaintiff must suffer an injury-in-fact that is concrete and particularized to satisfy Article III standing, could provide a basis for an argument against certification under Rule 23(b)(3). Specifically, the Spokeo court held that although “intangible” injuries and “violation(s) of a procedural right” can suffice in some situations, “a bare procedural violation, divorced from any concrete harm” cannot satisfy the injury-in-fact requirement. Applying this holding in the TCPA context, there is a compelling argument that each class member in a TCPA case is required to show individualized harm beyond just the statutory violation, thereby resulting in individual questions predominating over common issues, precluding certification.
This is not what the court thought in Golan. The defendants challenged certification on many grounds, including an argument that the plaintiffs could not prove injury with class-wide proof because they lacked standing under Spokeo. The court rejected this argument and instead held that “unwanted calls cause a risk of injury due to interruption, distraction, and invasion of privacy” and that these amount to concrete injuries sufficient to confer constitutional standing. The court seemed to paint this conclusion with a wide brush, adopting the reasoning expressed in another case, Krakauer v. Dish Network, LLC, 168 F. Supp. 3d 843 (M.D. N.C. 2016), which held that even when plaintiffs/class members did not pick up or hear the phone, concrete injuries occurred “because each call creates, at a minimum, a risk of an invasion of a class member’s privacy.” The reasoning in Golan, if adopted by other courts, could make it more difficult to challenge certification in a TCPA case under 23(b)(3) based on Article III standing.