Most defendants have found Spokeo defenses of limited utility in TCPA individual cases and class actions, as courts throughout the country have routinely held that the receipt of phone calls or text messages is sufficiently “concrete” to confer standing under Article III. The reasoning – though arguably flawed – is that one’s time and energy is diverted upon answering a call or reading an unsolicited message (even if de minimis), and that such interruptions may count toward a plaintiff’s “minutes” on her cell phone, causing “financial” harm. (The latter point may have been true in 1991 when the TCPA was enacted, but now-a-days, nearly all wireless companies offer some version of unlimited data plans in lieu of “minute” plans).
So, does the result change when a plaintiff receives a single missed call? The court in Shuckett v. DialAmerica Marketing, Inc., Case No. 17-cv-2073 (S.D. Cal. Feb. 22, 2019) answered “no,” but with a bit of a caveat.
In Shuckett, the plaintiff alleged that she received a single call from one of the defendants—a call that the plaintiff admits that she never answered. The defendant moved to dismiss for lack of standing, arguing that a single missed call did not constitute a concrete injury under Spokeo. The second defendant likewise moved to dismiss, arguing that it could not be vicariously liable when its vendor contract expressly required TCPA compliance. The court denied both motions.
On the issue of standing, the court found that even the de minimis harm of a missed call with “zero seconds of ‘talk time’” qualifies as a concrete injury under Ninth Circuit precedent. The defendant conceded that a single call could confer standing but argued that there could be no injury in plaintiff’s case because there was no “talk time.” The court was not persuaded, and analogized a missed call to the receipt of a text message as in Van Patten, observing that “[n]either requires an outlay of time or energy, but both ‘disturb the solitude of their recipients.’”
Bad enough, but the court thankfully hinted to a glimmer of hope: “Had the call gone entirely unnoticed, perhaps this would be a different case.” This one liner is significant for two reasons: (1) if a defendant is able to elicit a plaintiff’s testimony that a call or message went “unnoticed,” a Spokeo challenge may prove more viable on summary judgment; and (2) in class actions, defendants can argue that some unascertainable class members may lack standing because not all class members are in the same position vis-à-vis injury (i.e., class members may have answered the calls, some may have gone “unanswered,” and others may have gone “unnoticed”).
In addressing vicarious liability, the court held that the contractual provision requiring TCPA compliance was “not the be-all and end-all” of the analysis. The court found that weighing the various factors of agency would be better suited for a motion for summary judgment. The court recognized that agency need not be actual authority in the contract language, but could have been through apparent authority or ratification as well: “The contract might be dispositive as to whether ProspectsDM had actual authority to act on behalf of American Standard. But it says nothing, for example, about whether the parties’ course of dealing constituted ratification of ProspectsDM’s unlawful behavior.”
While seemingly an unfavorable decision for defendants, the lesson that should not be forgotten is that Article III standing is an extremely nuanced concept under the TCPA. Whether a call or text message is answered, noticed, or unnoticed might just make all the difference.