Gavel

U.S. District Judge Cathy A. Bencivengo recently dismissed a plaintiff’s TCPA putative class claim due to lack of standing required under Article III.  In Anton Ewing v. SQM US, Inc. et al., No. 3:16-cv-1609-CAB-JLB (S.D. Cal., Sept. 29, 2016), the plaintiff alleged that he received a single survey call made by SQM on Blue Shield’s behalf via an automated telephone dialing system without his consent.  In addition to his individual claim, the plaintiff sought class certification for individuals similarly situated within four years prior to the filing of the complaint.

The claims in this case are important to companies similarly situated to Blue Shield and SQM because opportunistic litigants seek recovery without injury.  The decision applied Spokeo’s requirement for a plaintiff to establish “concrete harm” in order to maintain Article III standing to assert a TCPA claim.  Earlier this year, Spokeo clarified the Article III standing requirement, finding that a bare procedural violation is not enough to confer standing without a direct link to a concrete injury.

The Ewing court reasoned that the plaintiff’s bare procedural violation—i.e., that he “incurred a specific charge for Defendant’s call to his cellular telephone”—was not an injury traceable to the defendants’ alleged usage of an ATDS in violation of the TCPA, and therefore the plaintiff lacked standing.  The decision further demonstrated the split of opinion at the federal district court level regarding how Spokeo applies to TCPA claims.

Even with the Ewing court’s decision, corporations that regularly communicate with their customers via outbound calls, either directly or through third-party vendors, must remain steadfast in implementing and executing their compliance programs.  Until there is a uniform national application of Spokeo to TCPA claims, corporations and their respective counsel should carefully evaluate judicial application of Spokeo within the scope of their business jurisdictions.

Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 50 companies regarding their compliance strategies.  We will continue to monitor regulatory and judicial interpretation of the TCPA in order to identify and advise on potential risks.