TWO PRERECORDED CALLS? No Standing to Bring a TCPA Suit Court Holds

Sua sponte is one of my favorite phrases in the law.

Latin for “of its own accord” the phrase sua sponte is used when a Court decides on its own to do something in a case.

It is pretty cool when it happens because it means: i) a court is paying attention; and ii) a court really has an opinion on a matter.

Take Rose v. Mycomputercareer, Inc., 2022 WL 16636762, CASE NO.: 3:22-cv-248-BJD-JBT (M.D. Fl. Nov. 2, 2022.)

There the court sua sponte reviewed jurisdiction in the case and determined that Plaintiff lacked Article III standing to sue. This is true even though the defendant had not yet challenged the issue.

In Rose the Plaintiff had alleged receipt of two prerecorded calls. But the court said that was not enough to establish standing. Here’s the analysis:

The Complaint alleges few facts other than that Plaintiff received two calls on his cell phone that used prerecorded voice messages. (Id. at 4–6, 8.) There is little background alleged, such as how Defendant got Plaintiff’s cell phone number in the first place. The allegations are brief, conclusory, and appear to fall far short of alleging a “concrete” harm, calling into question “whether plaintiff[ ] ha[s] identified a close historical or common-law analogue for [his] asserted injury.” TransUnion, 141 S. Ct. at 2204.

The Court is aware that in Cordoba v. DIRECTV, LLC, the Eleventh Circuit held that: “The receipt of more than one unwanted telemarketing call made in violation of the provisions enumerated in the TCPA is a concrete injury that meets the minimum requirements of Article III standing.”1 942 F.3d 1259, 1270 (11th Cir. 2019); see also Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301, 1304 (11th Cir. 2020) (applying Cordoba in a case involving “over a dozen unsolicited phone calls” allegedly placed through an automatic telephone dialing system). Despite these precedents, there is still a standing issue in this case. First, as the Eleventh Circuit recently noted, Cordoba and Glasser were decided before TransUnion. See Drazen, 41 F.4th at 1362 n.14. Glasser in particular has already been called into question. (Id.)

Second, it is not clear in this case that the subject calls were either “unwanted” or “telemarketing” calls. The conclusory allegations of the Complaint are insufficient for the Court to make this determination. Moreover, Defendant contends that the calls were actually solicited by Plaintiff and also should not be considered telemarketing calls

Interesting, no?

Related, I was speaking with a plaintiff’s lawyer in Florida recently who conceded that standing issues are really starting to slow down their TCPA and FTSA efforts. So keep these concepts in mind!

Queenie and Countess

Relatedly, Queenie and the Countess will be in Florida (Miami) speaking at Convoso’s big road show event TOMORROW!!!

If you are around be sure to stop by and say hello. Queenie has lots of swag to hand out.

You want your name in this thing…

Also for those of you interested–BIG announcement today on how to BID for advertising space in the Czar’s big 2023 annual TCPA review. This is THE TCPA guide that is read by EVERYBODY. And now you can have your name attached to it. Details later this afternoon pacific.


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