On July 10, 2017, the U.S. Court of Appeals for the Third Circuit concluded that receiving a single prerecorded call constituted a concrete injury for the purposes of Article III standing.

The plaintiff—Noreen Susinno—alleged that she received an unsolicited call to her cell phone from the defendant—Work Out World, Inc. She did not answer the call. The defendant left a voicemail; it was a one-minute prerecorded promotional offer.

The plaintiff filed a complaint in the U.S. District Court for the District of New Jersey alleging that the defendant’s call and voicemail violated the Telephone Consumer Protection Act’s (“TCPA”) prohibition on prerecorded calls to cell phones. The defendant moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that the plaintiff had not suffered a concrete injury and therefore lacked Article III standing. The district court granted the motion to dismiss, predicating its decision on two conclusions: (1) that a single solicitation was not the type of conduct Congress was trying to guard against with the TCPA and (2) that the call and the voicemail did not cause a concrete injury. The plaintiff appealed to the Third Circuit.

The appeal presented the Third Circuit with two distinct questions: Did the TCPA forbid the defendant’s alleged conduct?  And, if so, did the defendant’s alleged conduct cause a harm that satisfied the concreteness component of Article III’s standing requirement?

The TCPA makes it “unlawful for any person within the United States . . . to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” According to the defendant, because the plaintiff was not charged for the call, the TCPA did not reach the defendant’s alleged conduct. The Third Circuit disagreed for multiple reasons. The lead reason was that as a matter of grammar, the “charged for the call” phrase in the statute only applied to the last antecedent—“any service”—not every item in the list.

The second question for the Third Circuit was whether the alleged injury satisfied the concreteness component of Article III’s standing requirement. The court acknowledged that Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) and In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625 (3d Cir. 2017) identified the standard the court should use to resolve the concreteness dispute. The standard amounted to two inquiries. First, was the alleged injury the type of injury Congress had aimed to prevent with the statute? Second, did the alleged injury implicate interests that were similar to those implicated by an injury that traditionally provided a basis for lawsuits in English or American courts?

First, the Third Circuit concluded that the alleged injury was precisely the type of injury Congress had aimed to prevent with the TCPA. To reach that conclusion, the court relied on the TCPA’s text and Congress’ finding that prerecorded calls are a nuisance. Second, the court concluded that the alleged injury implicated the same interests as a traditional common law cause of action—intrusion upon seclusion. Specifically, the intrusion upon seclusion cause of action and the TCPA allow people to vindicate their privacy interests. On those two bases, the Third Circuit concluded that the plaintiff had satisfied the concreteness component of Article III’s standing requirement.

Because the court determined that the TCPA provided the plaintiff with a cause of action and the alleged injury satisfied the concreteness component of Article III’s standing requirement, the court vacated the district court’s order and remanded the case for further proceedings. The outcome of this case—and its reasoning—will likely make it harder for defendants to win motions to dismiss based on the alleged lack of concrete harm. The federal courts of appeals and the district courts, however, are still working out precisely what Spokeo means for Article III’s standing requirement.

The case is Susinno v. Work Out World, Inc., No. 16-3277, in the U.S. Court of Appeals for the Third Circuit. A copy of the court’s decision is available by clicking here.