Eleventh Circuit Affirms Dismissal of TCPA Claim for Lack of Standing Where Consumer Failed to Offer Any Evidence That Ringless Voicemails Rendered Her Phone Unavailable for Legitimate Calls or Messages

King & Spalding

On December 9, 2020, the Eleventh Circuit affirmed the Northern District of Georgia’s dismissal of a putative class action alleging violations of the Telephone Consumer Protection Act (“TCPA”), holding that the named plaintiff lacked standing. The decision adds further factual nuance to the circuit’s evolving jurisprudence concerning what constitutes an injury in fact under the TCPA.

  • Plaintiff Miriam Grigorian alleged that Fiat Chrysler of America (“FCA”) violated the TCPA by contracting with a third-party to send a prerecorded voicemail advertising the Chrysler Pacifica Hybrid minivan to her and over 89,000 potential class members. The messages were sent through a “ringless” voicemail, meaning that the messages were deposited directly into consumers’ voicemail boxes without actually ringing the telephone.
  • The plaintiff alleged that these calls caused her harm by invading her privacy, causing her aggravation and annoyance, and intruding upon her seclusion. The district court dismissed the case after finding that the plaintiff “suffered no concrete injury despite what might be seen as a technical violation of the statute.”
  • On appeal, while the plaintiff admitted she incurred no financial loss, she argued that she suffered two injuries: (1) she was not able to use her phone or access any other applications while she was listening to the voicemail, and (2) she lost time studying for the bar exam by listening to the voicemail and, thereafter, trying to determine how FCA obtained her information.
  • These arguments did not sway the Eleventh Circuit, which affirmed the district court’s dismissal and held that the plaintiff did not suffer a concrete injury. The Eleventh Circuit distinguished Grigorian from other TCPA-related cases because there was no evidence that the voicemail “rendered her phone unavailable to receive legitimate calls or messages for any period of time”—unlike a prior TCPA decision concerning faxes. The court did note, however, that “the analysis may be different if a plaintiff alleges multiple ringless voicemails.”
    • In this way, the Eleventh Circuit determined that the facts in Grigorian more closely resembled those in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019)—involving a single unwanted text message—than cases involving multiple unwanted phone calls, such as Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019), and Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301 (11th Cir. 2020). In other words, the severity of an annoyance or intrusion may determine whether it rises to the level of an injury in fact. You can read our prior analysis of those cases here, here, and here.
  • The Grigorian decision is another in a series of cases from around the country that are grappling with changes in standing doctrine after the Supreme Court’s decision in Spokeo. Many courts have struggled to draw the line between mere technical violations and intangible injuries that are sufficiently “concrete” to confer standing. But with this holding, the Eleventh Circuit makes clear that minor inconveniences do not necessarily carry plaintiffs across the Article III threshold.
  • Read the Eleventh Circuit’s unpublished opinion here.

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