On October 19, the United States District Court for the District of New Mexico denied defendants’ motion to dismiss a TCPA putative class action on Spokeo grounds.
In LaVigne v. First Community Bancshares, Inc., et al., the plaintiff contends that the defendants called her on her cell phone approximately 195 to 265 times using an automatic telephone dialing system (“ATDS”) without her prior express consent and even after she informed them that they had the wrong number. LaVigne supposedly answered about 70 percent of the calls. She filed a class action lawsuit seeking to represent all persons in the United States who received a non-emergency telephone call from the defendants using an ATDS within four years of the filing of the complaint where defendants did not have the prior express consent of that person. The defendants subsequently filed a motion to dismiss, arguing that LaVigne lacked standing under the standards espoused in Spokeo, Inc. v. Robins.
The Court first noted that “[e]ach alleged violation of the TCPA is considered a separate claim, meaning that a plaintiff must establish standing (an injury-in-fact) for each individual call.” The Court ultimately sided with LaVigne, finding that “the TCPA contains a congressionally-identified concrete injury in its language prohibiting certain kinds of telephone calls,” and “[t]his substantive prohibition sets it apart from the few cases which have determined that concrete injuries cannot result from bare statutory violations.” In other words, “[t]he TCPA codifies the application of a long-recognized common law tort of invasion of privacy[.]” The Court found that the defendants’ phone calls were an invasion of privacy and thus a concrete harm under the TCPA. The Court additionally did not rule on the question of whether LaVigne suffered damages from missed calls, holding that such issues “should be resolved on summary judgment or at trial.”
The LaVigne decision stands in stark contrast to other TCPA decisions, such as those issued in Ewing and Romero wherein the district courts held that the plaintiffs lacked standing to pursue their claims.
Troutman Sanders will continue to monitor these Spokeo-related developments in TCPA cases.