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Lack of Standing Results in Dismissal of TCPA Suit

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A federal district judge in California recently ruled that a TCPA plaintiff lacked standing to bring her TCPA claims because she failed to set forth evidence that she suffered an injury-in-fact with respect to each telephone call. The matter is Romero v. Department Stores National Bank, et al., No. 15-CV-193 (S.D. Cal. Aug. 5, 2016).

In Romero, the plaintiff alleged that the defendant, a creditor that attempted to call the plaintiff on her cell phone number after she failed to make payments on her credit card, was responsible for initiating approximately more than 300 telephone calls to her cell phone via an automatic dialing system. The plaintiff only answered a few of the calls, yet alleged that she suffered “severe and substantial emotional distress.”

The defendant moved to dismiss, based in large part upon the recent ruling by the Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (A statutory violation alone is not sufficient to establish the injury-in-fact requirement of Article III. If the defendant’s actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a plaintiff standing).

In response, the plaintiff asserted that the harm suffered was grounded in privacy and the aggravation associated with unwanted telephone calls. The court disagreed, stating that “one singular call, viewed in isolation and without consideration of the purposes of the call, does not cause any injury that is traceable to the conduct for which the TCPA created a private right of action, namely the use of an ATDS to call a cell phone.”

The court found that the plaintiff was unable to establish evidence that the use of an ATDS by the defendant “caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA.”

According to the court, distress related to telephone calls could potentially be an injury-in-fact to establish standing, so long as the harm has a nexus with the each specific call. The argument being, the plaintiff could not connect an injury to telephone calls that were not answered. Thus, standing could only potentially exist for the small handful of calls that were actually answered

This defense-oriented decision based upon Article III standing for each individual call is a small victory for marketers.

Please contact an advertising compliance lawyer if you are interested in discussing the design and implementation of telemarketing campaigns, or if you are the subject of a telemarketing related investigation or enforcement action.

Richard B. Newman is an Internet law, online marketing compliance, telemarketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing and defending clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, complex commercial litigation defense, SPAM law compliance and litigation defense, intellectual property transactional and litigation matters, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

HINCH NEWMAN LLP. ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result.

Richard B. Newman is an advertising law and regulatory defense attorney at Hinch Newman LLP focusing on Internet marketing compliance and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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