Ahead of the Class

In a precedential decision filed on July 10, 2017, the Third Circuit addressed consumer standing, after Spokeo, to bring a claim under the Telephone Consumer Protection Act. Reversing an order dismissing a TCPA claim for lack of subject-matter jurisdiction, the court ruled the claim could proceed because (1) the injury the plaintiff alleged was exactly what the TCPA prohibited and (2) the injury, though intangible, met the “concreteness” requirement of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), as it was “closely relate[d] to a cause of action [intrusion upon seclusion] traditionally recognized in English and American courts.” Susinno v. Work Out World Inc., — F.3d —, No. 16-3277, 2017 WL 2925432, at *5 (3d Cir. July 10, 2017). While a single call would be inadequate to support a common-law claim for invasion of privacy, the Third Circuit ruled that Congress, in enacting the TCPA, had “elevated” a previously non-actionable injury to a legally cognizable claim. The Third Circuit accordingly reversed the dismissal of Susinno’s case for lack of subject-matter jurisdiction.

Plaintiff Noreen Susinno alleged that in July 2015, defendant Work Out World (WOW) placed an unsolicited call to her cell phone. Susinno did not answer the call and WOW left a prerecorded message in her voicemail. Susinno then filed a TCPA class action in New Jersey federal court, and WOW moved to dismiss for lack of subject-matter jurisdiction. The district court granted the motion on two grounds: (a) a single call was not “the type of case that Congress was trying to protect people against” and (b) the call and the voicemail did not cause any concrete injury to Susinno. Susinno, 2017 WL 2925432, at *1.

On appeal, the Third Circuit framed the issues for review as follows: “This appeal poses two distinct questions: Does the TCPA prohibit the conduct alleged by Susinno? And if it does, is the harm alleged sufficiently concrete for Susinno to have standing to sue under Article III of the United States Constitution?” Id.

Does the TCPA Apply to the Plaintiff’s Claim?

The Third Circuit had no difficulty resolving the first question. WOW argued the TCPA prohibited only calls for which the recipient (unlike Susinno) was specifically charged. Id. at *2. The court rejected this argument, finding that the TCPA’s plain language encompassed all unconsented-to calls to a cell phone placed by an automated telephone dialing service or using a prerecorded voice – not just those where the recipient was charged. The court reinforced its determination by observing that Congress delegated to the FCC discretion to exempt from TCPA liability calls to cell phones “that are not charged to the called party.” There would be no reason for that discretion if, as WOW maintained, the TCPA’s statutory language exempted uncharged calls on a blanket basis. Id. The TCPA therefore applied to WOW’s call to Susinno’s cell phone.

Was Susinno’s Injury “Concrete”?

The court then turned to the timely question whether, under Spokeo, Susinno’s claim presented a “concrete” injury. This too the court resolved in the plaintiff’s favor. The court began by quoting Spokeo’s familiar holding that “Article III standing requires a concrete injury even in the context of a statutory violation” and – because Susinno sustained no “tangible” injury from the call and voicemail – “intangible injuries can nevertheless be concrete.” Id. at *3 (quoting Spokeo, 136 S. Ct. at 1549). The court then noted that in determining if an intangible injury supports standing, the Supreme Court directed that “both history and the judgment of Congress play important roles,” and when conducting the historical inquiry, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. (quoting Spokeo, 136 S. Ct. at 1549). Finally – and critically for Susinno – “[t]he Supreme Court also recognized that Congress may elevate certain intangible harms “to the status of legally cognizable injuries,” even if those injuries “were previously inadequate in law.” Id. (quoting Spokeo, 136 S. Ct. at 1549).

Quoting from its opinion in In re Horizon Healthcare Services Inc. Data Breach Litig., 846 F.3d 625 (3d Cir. 2017), the court summarized the inquiry as follows:

• When one sues under a statute alleging “the very injury [the statute] is intended to prevent,” and the injury “has a close relationship to a harm . . . traditionally . . . providing a basis for a lawsuit in English or American courts,” a concrete injury has been pleaded. [Horizon, 846 F.3d at] 639–40. We do not, and need not, conclude that intangible injuries falling short of this standard are never concrete. See Horizon, 846 F.3d at 638 (declining to determine minimum standard of concreteness where unnecessary to decide case). Rather, we simply observe that all intangible injuries that meet this standard are concrete.

Susinno, 2017 WL 2925432, at *4.

The first part of the inquiry was easy to resolve: “Congress squarely identified [the] injury” Susinno alleged. “The TCPA addresses itself directly to single prerecorded calls from cell phones, and states that its prohibition acts ‘in the interest of [ ] privacy rights.’” Id. (quoting 47 U.S.C. § 227(b)(2)(C)). In addition, the TCPA’s legislative history mentioned complaints that “automated or prerecorded telephone calls are a nuisance [and] . . . an invasion of privacy.” Id. (quoting Pub. L. 102-243, § 2). The court “therefore agree[d] with Susinno that in asserting ‘nuisance and invasion of privacy’ resulting from a single prerecorded telephone call, her complaint asserts ‘the very harm that Congress sought to prevent,’ arising from prototypical conduct proscribed by the TCPA.” Id. (citing Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (two text messages constituted concrete injury under TCPA, as they “present the precise harm and infringe the same privacy interests Congress sought to protect”)).

The court then turned to the Spokeo point: the “historical inquiry” whether Susinno’s intangible injury was “concrete.” Id. Proceeding from the concerns over nuisance and invasion of privacy Congress had identified when enacting the TCPA, the court regarded Susinno’s claim as “closely related” to a claim for intrusion upon seclusion, a form of invasion of privacy traditionally actionable in English or American courts. Id.

The court acknowledged, however, that under the Restatement (Second) of Torts, a claim for intrusion upon seclusion based on unwanted telephone calls would exist only “when [such] calls are repeated with such persistence and frequency as to amount to . . . hounding.” Id. (quoting Restatement (Second) of Torts § 652B cmt. d (1977)). Susinno received only a single call that went to voice-mail, and the court noted that because “[t]he Second Restatement suggests that because ‘two or three’ calls would not be ‘highly offensive to the ordinary reasonable [person],’ they traditionally would provide no cause of action.” Id.

The question therefore arose whether, with only a single unwanted call, inadequate to support a traditional claim for intrusion upon seclusion, Susinno nevertheless had standing to assert a TCPA claim. The Third Circuit ruled that she did, endorsing the Ninth Circuit’s opinion in Van Patten, supra, that Congress had declared that unsolicited calls like Susinno’s, “by their nature, invade the privacy and disturb the solitude of their recipients,” and therefore Congress “sought to protect the same interests implicated in the traditional common law cause of action.” Id. (quoting Van Patten, 847 F.3d at 1043).

A conclusion that a single call, “by [its] nature,” is an actionable invasion of privacy, though, is hard to square with the Restatement, which as noted requires that the alleged conduct rise to the level of “hounding.” Indeed, when explaining that “there is no liability for . . . calling [a person] to the telephone on one occasion or even two or three,” the comment to section 652B goes on to require that calls be “repeated with such persistence and frequency as to amount to a course of hounding the plaintiff [] that becomes a substantial burden to [her] existence” – something that Susinno’s one call, which she ignored, could not have caused. While Congress, according to Spokeo, may “elevate” a previously non-actionable harm to an actionable statutory injury, the single call Susinno alleged is hardly “of the same character,” Spokeo, 136 S. Ct. at 1549, as the “highly offensive” conduct needed for a claim of intrusion upon seclusion. Rather, in the age of ubiquitous voicemail, millions of such calls are routinely ignored at trivial or no burden.

“[C]ourts benefit from straightforward rules under which they can readily assure themselves of their power to hear a case.” Id. at *5 (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)). The Third Circuit has now ruled that a single unauthorized call is sufficient to support standing for a TCPA claim. Application of its “straightforward rule” in cases asserting other statutory claims awaits.