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Category - "Standing"

Eleventh Circuit Finds Complaint’s Ambiguity in Number of Calls Received Warrants Remand for Article III Standing Analysis

Recently, the Eleventh Circuit remanded a TCPA suit for the district court to rule on Article III standing, finding that the trial court should have addressed the standing issue because plaintiffs failed to plead the number of telephone calls allegedly received.

Sixteen plaintiffs in Evans v. Ocwen Loan Servicing, LLC, No. 21-14045, 2022 WL 17259718 (11th Cir. Nov. 29, 2022), alleged that defendants violated the TCPA by using an Automated Telephone Dialing System (ATDS) to call them. The complaint included the exact number of calls allegedly received by only eight of the plaintiffs, and stated “that the ‘[e]xact number of calls’” received by the other eight was “‘not confirmed at this point.’” Id. at *1. The district court dismissed, concluding that the system at issue was not an ATDS. The Court of Appeals vacated and remanded, however, finding that the district court failed to address “a significant jurisdiction issue.” Id.

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Recent Ninth Circuit Opinions Address Standing and the Meaning of ‘Automatic Telephone Dialing System’

The Ninth Circuit recently issued two noteworthy TCPA decisions. Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space: the definition of “automatic telephone dialing system” (“ATDS”). Shortly before that, in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), the Ninth Circuit discussed both Article III and statutory standing.

Borden and the ATDS Definition

In a unanimous opinion, the Ninth Circuit recently affirmed the dismissal of a text message TCPA suit based on its holding that to qualify as an ATDS, dialing equipment “must generate and dial random or sequential telephone numbers,” not just any numbers. See Borden, 2022 WL 16955661, at *1.

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Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant

The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley. See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022).

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Eleventh Circuit Applies TransUnion and Vacates Class Certification

The Eleventh Circuit recently decertified a TCPA settlement class because the class definition included members who could never have Article III standing under Eleventh Circuit precedent. Drazen v. Pinto, — F.4th –, No. 21-10199, 2022 WL 2963470, at *4-7 (11th Cir. July 27, 2022). The court applied the U.S. Supreme Court’s holding in TransUnion LLC v. Ramirez and ruled that all members of a Rule 23(e) settlement class must have Article III standing to recover damages. Id. at *5-6 (citing TransUnion, 141 S. Ct. 2190, 2208 (2021)). The Drazen court expressly rejected the proposition that plaintiffs with no standing in the Eleventh Circuit could be part of a nationwide class, even if they may have standing in another circuit. Id. As of the date of publication, Drazen is the first and only decision from a federal appellate court that analyzes TCPA claims under the TransUnion rubric. Although the impact of Drazen outside of the Eleventh Circuit remains unclear, the case demonstrates how courts may analyze Article III standing issues in TCPA class actions going forward.

As readers of this blog are aware, the U.S. Supreme Court issued its decision in TransUnion, LLC v. Ramirez last summer. The decision reaffirmed that plaintiffs must demonstrate a “concrete harm” to establish Article III standing to sue in federal court. TransUnion, 141 S. Ct. at 2200. Moreover, in footnote 4 of the TransUnion decision, the Court explicitly stated that it was not addressing the “distinct question whether every class member must demonstrate standing before a court certifies a class.” Id. at 2208 n.4.

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Eastern District of Pennsylvania Court Holds Text Claim Satisfies Article III, Then Dismisses for Failure to Allege Enough Facts to Make Claim Plausible

A judge in the U.S. District Court for the Eastern District of Pennsylvania recently concluded that receipt of unwanted text messages in violation of the TCPA can constitute an injury-in-fact for purposes of Article III standing, but nevertheless dismissed the claim (without prejudice) pursuant to Rule 12(b)(6) based on its threadbare allegations.

In Camunas v. National Republican Senatorial Committee, the plaintiff (Rolando Camunas) alleged that he received no less than six unsolicited text messages from the defendant (NRSC) asking him to donate to a political party. Civil Action No. 21-1005, 2021 WL 2144671, at *1 (E.D. Pa. May 26, 2021). In his complaint, Camunas described the messages as “generic and obviously pre-written” and alleged that they were sent using an automatic telephone dialing system (ATDS), in violation of the TCPA. Id.

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Fifth Circuit Finds Injury In Fact after Single Text Message

The Fifth Circuit recently held that a TCPA plaintiff who received a single text message suffered an Article III injury sufficient to support standing for his claim. In Cranor v. 5 Star Nutrition, L.L.C., No. 19-51173, 2021 WL 2133433 (5th Cir. May 26, 2021), the plaintiff alleged that 5 Star Nutrition violated the Telephone Consumer Protection Act (TCPA) when it sent him several unsolicited advertising text messages. The parties entered into a settlement agreement to avoid litigation. After the settlement, 5 Star Nutrition sent one final promotional text message and the plaintiff filed suit, claiming that the single text message harmed him by invading his privacy, interfering with his right to his cellular phone and telephone line, and intruding upon his seclusion.

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Business or Residential? Ambiguity Surrounding Number on Do Not Call Registry Can Defeat Class Certification

In an interesting decision from the District Court of Oregon, United States Magistrate Judge Youlee Yim You recommended granting a motion to deny class certification where uncertainty about the appropriate classification of a cell phone number’s use was enough to make the plaintiff an inadequate class representative with atypical claims. Mattson v. New Penn Fin., LLC, No. 3:18-cv-00990, 2021 WL 1406875 (D. Or. Mar. 8, 2021).

In Mattson, the plaintiff filed a TCPA class action, claiming the defendant, New Penn Financial, LLC, called his cell phone while it was registered on the national Do Not Call Registry in violation of 47 C.F.R. § 64.1200(c). Id. at *1. As readers of this blog will note, 47 C.F.R. § 64.1200(c)(2) prohibits telephone solicitations made to residential telephone subscribers who are registered on the Do Not Call Registry. New Penn sought denial of class certification, arguing the uncertainty of Plaintiff’s standing made his claims atypical, rendering him an inadequate class representative. Id. In considering the motion, the Court identified an issue unique to the plaintiff—whether the cell phone number at issue was properly considered a residential or business telephone number. Id. at *5.

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S.D. Fla. Court Remands Case to State Court, Finding No Article III Injury

The Southern District of Florida recently remanded a case back to state court because the defendant that removed the case failed to establish that plaintiff suffered an Article III injury. Harris v. Travel Resorts of America, Inc., Civ. No. 2:20-14369-AMC (S.D. Fla. Mar. 31, 2021). Notably, the Court also found that plaintiff should be able to recover its attorneys’ fees in seeking remand given the defendant’s reversing its prior position on whether the Court had subject-matter jurisdiction over the case.

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TCPA Plaintiff Argues He Wasn’t Injured in Attempt to Dodge Federal Jurisdiction

Usually, it is the plaintiff that argues he or she was injured, not the defendant. But, in an effort to stay in state court, some TCPA plaintiffs have taken the counterintuitive position that they did not suffer an injury in fact under Article III of the U.S. Constitution and, therefore, their claims cannot be heard in federal court.

“[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180–181 (2000).

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