This guy is good. Or picking his battles well. Or something.
We reported not long ago on a big win by Cunningham in Utah in which he successfully defeated arguments that he lacked prudential standing to sue because of his numerous TCPA lawsuits and (possible) efforts to collect phone calls by owning many phones.
Now he has earned an even greater victory by convincing a court that the mere receipt of a single missed call is sufficient to cause “concrete harm” for Article III purposes. That seems to be a first-in-the-nation result, and a bad one at that.
In Cunningham v. Radius Global Solutions Llc , Civil Action No. 4:20-CV-00294, 2020 U.S. Dist. LEXIS 167954 (E.D. Tx. Sept. 14, 2020) the Defendant was a Minnesota debt collector calling a Tennessee consumer who ended up sued in Texas. Not sure how that happened, but that’s not the point.
The complaint alleged a single missed call to Cunningham that he (Plaintiff) did not consent to receive. The Defendant moved to dismiss the case for lack of subject matter jurisdiction arguing that Plaintiff alleged only one missed call and that there was absolutely no way it could have caused him any concrete harm. Cunningham countered that because the Defendant had used a local area code he thought the missed call might have been a friend trying to reach him—he called the number back and, thereby, lost time and was annoyed.
The Court agreed with Cunningham. Distinguishing the Hanna –the Eleventh Circuit case holding that receipt of a single text does not afford standing to sue under the TCPA—the Court found that a missed call from a local area code is likely to cause harm because a Plaintiff may (and Cunningham allegedly did) have to call the number back to determine who attempted a call. This causes a meaningful waste of time and is different from merely glancing at a text message to determine if it valuable to read:
At issue in this case is a missed call, not a single, unsolicited text message. It only takes one glance at a text message to recognize it is for an extended warranty for a car you have never owned or a cruise you have won from a raffle you never entered. A missed call with a familiar area code, on the other hand, is more difficult to immediately dismiss as an automated message.
Cunningham scored a second victory in the suit as well. The Defendant moved to dismiss the ATDS allegations (why not move to stay guys?) but the Court found the allegations sufficient. Specifically, Cunningham’s allegations that the Defendant’s agents had admitted to using an ATDS were sufficient to survive the pleadings stage. Importantly, however, the Court did not determine what functionalities are required of ATDS usage.
There is some good news here, however. The Court found that making a single debt collection call does not constitute harassment under the FDCPA and also determined, as other courts have before, that using local presence caller IDs does not constitute illegal conduct for FDCPA purposes.
At bottom, Cunningham demonstrates that there is just no escaping the TCPA. Any attempted call—even a missed single call—may give rise to a viable federal class action. And this is especially true where so called “local touch” or “local presence” is used. While the use of local assigned area codes may not be spoofing (or it might be...), the practice may lead to consumers feeling compelled to return calls they didn’t want in the first place; and that can land your operation in hot water.
Always happy to discuss.