It has been so long since a court dismissed a TCPA case for lack of Article III jurisdiction under Spokeo that most of us had stopped bringing standing challenges—except in special circumstances where unconsented calls were still likely wanted.
In the Ninth Circuit, in particular, following Romero and Van Patten it seemed as if there was very little room to argue that an unwanted call or text does not cause concrete harm for Article III standing purposes. This is so because the Ninth Circuit has observed that receipt of unwanted messages is precisely the sort of harm that the TCPA was designed to prevent.
Nonetheless in a new decision this week, a court in California held that receipt of a single unanswered phone call by a Plaintiff does not give rise to Article III standing for Spokeo purposes. In Shuckett v. DialAmerica Mktg., CASE NO. 17cv2073-LAB (KSC), 2019 U.S. Dist. LEXIS 127049 (S.D. Cal. July 30, 2019) the court considered a motion for summary judgment challenging, inter alia, that the Plaintiff could not establish concrete harm sufficient to give rise to Constitutional standing.
The Defendant challenged that it had made one, and only one, call to the Plaintiff that went unanswered. In an earlier order the Court had noted that if the call had been unnoticed at the time it was made that might be a basis to determine that standing was lacking. On summary judgment the court refined a rule looking at contemporaneous awareness of the call to assess harm:
Whether [Plaintiff] was aware of the call or not is important because, as other courts in this circuit have noted, an unnoticed call may “violate the TCPA but not cause any concrete injury.”
At deposition the Plaintiff failed to recall whether the particular call at issue rang through, and she also failed to provide any evidence demonstrating that the call actually hit her screen. She did not, for instance, preserve the missed call notifications—a fact that the Court points out with disapproval: “In fact, despite being aware that her cell phone would automatically delete her call history after some amount of time, she failed to properly preserve screenshots or other evidence demonstrating that she had received a missed call from DialAmerica on October 10, 2017…this failure to preserve evidence supports an inference that the evidence would have been unfavorable to her.”
Relying on the rule that the Plaintiff has the burden of establishing standing, the court considers the Plaintiff’s lack of proof on the issue of concrete harm as dispositive of the issue. In the Shuckett court’s view, “while a missed call may be sufficient to confer standing if the plaintiff can demonstrate that he or she was aware of the call and it caused nuisance, it is not sufficient for a plaintiff to allege simply that he or she would have been aware of the call given what they were doing on that day.”
Wow—there’s the dynamite.
So the Shuckett court formulates a new Article III harm standard in TCPA cases requiring a Plaintiff to affirmatively prove nuisance from a call. In the Court’s view the Plaintiff’s evidence did not meet this standard: “Shuckett’s evidence here only supports a finding of conjectural or hypothetical injury.” This is so because, for instance, “it’s impossible for the Court to know whether the phone was Shuckett’s possession or a nurse’s possession at the time the call came in.” Similarly, the court finds that if the call never reached the Plaintiff’s handset “she’s suffered no harm at all because she never ‘received’ a call.”
So take note TCPAWorld—Spokeo arguments are back in the game. As Shuckett demonstrates a Plaintiff must demonstrate: i) the phone was in his/her possession; ii) when a call is actually received by the Plaintiff; and iii) in a manner that caused a nuisance. Then, and only then, has standing been established.
This decision is plainly wrong and I hope the plaintiff appeals. The TCPA prohibits the “initiation” of calls absent the requisite consent of the called person. Congress thus judged the risk of a recipient’s privacy being invaded from the making of such nonconsensual calls real enough to manifest a concrete injury and authorize a private right of action even if the invasion of privacy didn’t actually manifest.