By: Ryan Cash (firstname.lastname@example.org)
In an earlier blog, we discussed the Spokeo v. Robins case, which sent Mr. Robins, tail between his legs, back to the Ninth Circuit to make a stronger case for how Spokeo violated his rights under FCRA. With his standing not established, there has been considerable debate on what this means for alleged TCPA violations moving forward. Would Spokeo make it incredibly difficult for new plaintiffs to establish harm from a TCPA violations? Got Warranty, Inc. is saying, “if only…”
Diana Mey v. Got Warranty, Inc.
Plaintiff Diana Mey is enacting a TCPA lawsuit against Got Warranty, Inc. for receiving unwanted “robocalls” to her personal cell phone from Got Warranty, when her number was on the Do Not Call registry. For those unfamiliar, a robocall is that annoying call you receive from a robot that I’m sure you hang up on the second you realize it’s not a real person. These are legal for specific purposes, like emergency notifications, but under TCPA, businesses cannot make these phone calls for non-emergency purposes to your cell phone without your expressed consent prior.
Got Warranty, Inc. filed a motion to dismiss the case under the same premise as Spokeo (see our earlier blog for further information), that the unwanted phone calls did not cause “concrete and particularized” harm. The court denied Got Warranty’s motion on the basis that the phone calls did in fact cause concrete harm. They assert tangible harm in two ways:
1) For those who have prepaid cell phones and minutes, these calls waste those minutes and are thus a tangible monetary harm
2) Robocalls deplete an individual’s phone battery, which costs money to charge, and can be cumulatively substantial.
They also assert intangible harms that can still qualify as “concrete,” which include an invasion of privacy, occupation of your personal cell phone, and wasting your time answering the phone.
Impact of Spokeo
This ruling sheds some light on what Spokeo’s impact will be moving forward. As a reminder, the Spokeo “ruling” was merely a remand. In other words, it did not decide anything concrete (sorry for the bad pun), but merely required further justification to allege that a harm constitutes concrete injury and, therefore, a plaintiff has standing.
It was unclear what impact this decision by the Supreme Court would have on other similarly situated cases (especially in the realm of TCPA), but as this court notes, the Supreme Court “issued a narrow ruling” so the Ninth Circuit could “conduct a proper analysis.” In this court’s view, the unwanted phone calls did cause concrete harm for the aforementioned reasons. In other words, the Supreme Court’s analysis in Spokeo had no bearing on the analysis of this particular situation. In layman’s terms, other courts are free to interpret concrete harm how they see fit for new cases that arise.
FCRA v. TCPA
Spokeo v. Robins dealt with an alleged infraction of FCRA. The claim that was that misinformation about Robins’ personal information materially impacted his job prospects. In my view, Robins came from a more difficult position to establish concrete harm and thus standing. How many different things can impact one’s job prospects? A bad interview, a bad hair day, misinformation on my Spokeo profile… The list goes on. In other words, the direct link between the misinformation and harmed job prospects is a bit more difficult.
In contrast, with the TCPA violation, Diana Mey receives robocalls from Got Warranty, Inc. If there is a voicemail and a call log of this infraction, it takes no logical leap to assert the direct link. A call originating from Got Warranty, Inc. wasted my phone minutes, and cost me money, and therefore causes me concrete harm.
I would like to be clear and say that the preceding analysis does not mean to ignore FCRA. I simply aimed to show that the hope that Spokeo would make it difficult for plaintiff’s to establish harm in TCPA cases has already been proven to not hold water. If the effect on my electrical bill from making me charge my phone can be a criterion for concrete harm (a bit of a stretch, in my opinion, but “Ryan Cash said so” probably won’t hold in a court of law), who knows how courts down the line will rule in this respect. Will they all be as liberal in their interpretation? Probably not. But the point is, as a business, do not take chances.