On December 16, 2019, the Supreme Court denied DISH Network’s petition for certiorari seeking to overturn a $61 million judgment for Telephone Consumer Protection Act (“TCPA”) violations based on telemarking calls made to consumers on the Do-Not-Call registry.

• The lawsuit was filed as a class action against DISH, alleging TCPA violations on behalf of all persons who received calls on numbers listed in the Do-Not-Call registry. After the district court certified the class, the case went to trial, where the jury returned a verdict in favor of the plaintiffs and awarded damages of $400 per call. Thereafter, the district court concluded the violations were willful and trebled the damages award, resulting in an aggregate judgment of more than $61 million.
• DISH appealed to the Fourth Circuit, challenging, in part, the district court’s ruling that plaintiffs had Article III standing to sue. DISH relied on Spokeo v. Robins, in which the Supreme Court held that plaintiffs must prove a “de facto” injury—or an injury that “actually exists” separate from a bare alleged statutory violation—to establish standing. DISH argued that plaintiffs who sue to redress statutory violations, without establishing an actual injury, do not satisfy Article III.
• The Fourth Circuit agreed that Spokeo governed the issue, but disagreed with DISH about whether a violation of the TCPA itself constituted a cognizable harm, citing the TCPA’s private right of action, which itself “plainly satisfies the demands of Article III.”
• The court explained that the plaintiffs had established standing by proving a statutory violation, noting their class definition hewed “tightly to the language of the TCPA’s cause of action,” which “itself recognizes a cognizable constitutional injury.”
• The court rejected DISH’s argument that Article III’s injury-in-fact requirement is not met until the plaintiff’s alleged harm has risen to a level that would support a common law cause of action, explaining that “[t]his sort of judicial grafting is not what Spokeo had in mind.”
• The Fourth Circuit’s holding mirrors the Second, Third, and Ninth Circuits’ treatment of the issue; each have held that a TCPA violation is itself sufficient to establish standing. On the other side of the spectrum, the Eleventh Circuit held in September 2019 that a TCPA violation by itself does not constitute an injury in fact, as we reported in our September edition.
• By declining to take the appeal, the Supreme Court will leave this circuit split unresolved for now. The case is Krakauer v. DISH Network. Read more here.