3rd Circuit: Alleging only a statutory violation of the TCPA does not establish standing to sue

Courts Appellate Third Circuit TCPA Robocalls Spokeo

On May 19, the U.S. Court of Appeals for the Third Circuit affirmed a district court’s dismissal of a proposed TCPA class action suit for lack of standing, finding that the named plaintiff did not claim anything other than a “bare procedural harm that resulted in no harm.” According to the opinion, the plaintiff—who worked as an investigator for an attorney who prepared TCPA lawsuits—received a prerecorded telemarketing call in 2005 from a marketing company on behalf of the defendant national bank. The plaintiff, using a false name and employer, then placed and recorded more than 20 investigative calls to the marketing company to determine the number and frequency of calls it made. He then provided the recordings to the bank and declined the marketing company’s offer to place him on their Do-Not-Call list. In 2011, the plaintiff sued the bank alleging a single count violation of the TCPA but did not allege that he suffered any annoyance or nuisance from the marketing company’s call. The bank moved for summary judgment, arguing that: (i) the plaintiff lacked Article III standing to sue; (ii) “the call was exempt from the TCPA under FCC rules because the parties had an established business relationship” because the plaintiff was a customer of the bank; and (iii) the recorded message’s content did not violate the TCPA. The district court agreed with the bank and granted summary judgment on all three grounds.

On appeal, the Third Circuit disagreed with the plaintiff’s assertion that all he had to do was allege a statutory violation in order to have standing to sue, declining “to adopt such an absolute rule of standing with respect to the TCPA.” Because “the TCPA is intended to prevent harm stemming from nuisance, invasions of privacy, and other such injuries,” the plaintiff must allege at least one of those injuries to show concrete harm necessary to demonstrate an injury-in-fact and establish standing to sue, the appellate court wrote.