In an instructive opinion on how intangible harms can cause injuries sufficient to confer standing on plaintiffs—and a rare example of the U.S. Supreme Court’s latest ruling on standing aiding plaintiffs—a West Virginia federal court ruled June 30 that computer-dialed telemarketing calls caused concrete, particularized privacy invasions such that plaintiff’s Telephone Consumer Protection Act (“TCPA”) putative class action claim could move forward.
The ruling in Mey v. Got Warranty, Inc., et al., No. 5:15-cv-00101 (N.D. W.Va. June 30, 2016) provides a contrast to the growing number of dismissals issued by courts across the country finding that, after the U.S. Supreme Court’s opinion in Spokeo v. Robins, 136 S. Ct. 1540 (2016), plaintiffs in various cases failed to allege concrete, particularized injuries sufficient for Article III standing.1 Because of this, it may provide guidance for plaintiffs—particularly in the area of technology-related statutes and data breaches, where standing is often an issue—on how to avoid summary dismissal of their claims. Given the court’s detailed opinion, the import of the holding may extend well beyond the context of the case, in which plaintiff alleged she received numerous robocalls in violation of TCPA provisions barring autodialed, prerecorded messages and calls to those on the National Do Not Call Registry.
The decision offers valuable insight because its analysis, while fact-specific, addressed the more universal elements of Spokeo. Importantly, the Mey court observed that “Spokeo confirms that either tangible or intangible injuries can satisfy the requirement of concreteness,” and looked to the U.S. Supreme Court’s guidance on how courts should determine concreteness in the context of the latter. The key considerations were (1) whether the intangible harm—here, the effects of the unwanted calls—relate to a harm traditionally regarded as a basis for suit, and (2) whether there is evidence that Congress intended to “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.”
Considering the first of those factors, the Northern District concluded that the allegedly unlawful calls caused intangible harm in the form of invasion of privacy, intrusion upon and occupation of the consumer’s phone, and wasting the consumer’s time or causing the risk of personal injury because of distraction and interruption. Because harms such as privacy invasion and intrusion upon seclusion are closely related to harms sufficient to support a legal remedy, the court found the results of the unlawful calls it identified to be concrete, cognizable harms.
Turning to the issue of whether Congress intended to elevate the harms caused by the unwanted calls to concrete injury status, the court observed that “[p]rotection of consumers’ privacy rights was clearly foremost in Congress’s mind” with respect to the TCPA’s call restrictions. Citing to the Congressional record and tort cases, the Northern District found that “the harm caused by unwanted robocalls….has a close relationship to the harm recognized by th[e] ancient common law tort” of trespass to chattels. Additionally, the court noted that in enacting the TCPA, “Congress repeatedly emphasized the nuisance aspect,” and that distracted driving because of phone calls was a significant cause of car crashes.
In addition to those intangible harms, the court found that “unwanted phone calls cause concrete harm” in the form of, for example, lost plan minutes as well as battery depletion and the resulting energy costs required to recharge the phone. The court acknowledged that such costs were “certainly small,” but that the cumulative effect could be consequential, and the cost is real.
Given those considerations, the Mey court denied defendants’ motion to dismiss because the alleged injuries were concrete enough to confer Article III standing. While courts outside of the Northern District of West Virginia are not bound by this position, it does provide clues as to how courts may apply Spokeo, particularly in the context of translating an “ancient tort” to contemporary concerns and harms. Such insight is valuable to both plaintiffs and defendants, with respect to the TCPA and other claims under similar statutes.
1 In Spokeo, the U.S. Supreme Court ruled that a plaintiff does not automatically satisfy the injury-in-fact requirement where a statute authorizes a private right of action, and that “Article III standing requires a concrete injury even in the context of a statutory violation.” Thus, alleging a “bare procedural violation, divorced from any concrete harm” is insufficient to satisfy Article III’s injury-in-fact requirement.