TCPA Class Certified Based Largely on “Concrete Injury” Determination

Carlton Fields
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Following the United States Supreme Court’s decision in Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) – which held that Article III standing requires a concrete injury, even when an injury has otherwise been established for statutory purposes – there has been a debate as to what constitutes Article III “concrete injury” under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227.

With certain exceptions, the TCPA creates a statutory cause of action for injunctions, damages, or both against persons or entities that initiate phone calls to residential telephone lines using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.

On one side of the “concrete injury” debate are decisions holding that unanswered calls and answered calls that do not cause greater lost time, aggravation, and distress than manually dialed, answered calls are “bare procedural violations” and do not satisfy Article III’s concrete injury-in-fact requirement. See, e.g., Romero v. Dep’t Stores Nat’l Bank, No. 15–CV–193–CAB–MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016).

However, on the other side are decisions holding that unwanted calls – regardless of whether they are unanswered or answered – cause a risk of injury due to interruption, distraction, and invasions of privacy and are therefore concrete injuries, not bare procedural violations of the TCPA. See, e.g., Krakauer v. Dish Network, LLC, 168 F. Supp. 3d 843, 845 (M.D.N.C. 2016).

In Golan v. Veritas Entm’t, LLC, the Eastern District of Missouri aligned itself with the latter side of this debate, holding that allegedly unwanted robo calls, voiced by Mike Huckabee, and placed to promote the religious film “Last Ounce of Courage,” were sufficient to satisfy Article III standing in a TCPA class action.

The district court also analyzed the Rule 23(a) and 23(b)(3) factors necessary to support its certification of a nationwide class of recipients of such calls. First, the class was ascertainable based on a list of phone numbers and associated addresses derived from defendants’ records.

Second, defendants’ deponents admitted that calls were made to over four million residential numbers, thus demonstrating numerosity.

Third, on commonality and predominance, the court reasoned that common evidence would be used to attempt to establish liability vis-à-vis all class members because, on the issue of consent or lack thereof, a defense witness had testified that none of the four million numbers had consented to receiving future calls about movies for commercial purposes. In addition, class-wide injury could be determined based on the court’s “concrete injury” ruling described above.

Fourth, on typicality, the court found that all of these calls “concerned Last Ounce of Courage and the same prerecorded message was played for each.”

Fifth, as to the adequacy, the court rejected a challenge based on a preexisting friendship between one of the plaintiff’s attorneys and the primary representative plaintiff: “Numerous district courts have held even a familial relationship is not enough to create a conflict of interest; instead, courts look for shared financial interests. A friendship and shared passion for running do not create a conflict of interest.”

Finally, the court held that a class was a superior means of litigating these claims because there were potentially millions of class members; a class action would be more efficient and conserve judicial resources; class treatment would ensure consistent rulings on shared issues; and there were not any known lawsuits concerning this same telemarketing campaign.

Golan v. Veritas Entm’t, LLC, No. 4:14CV00069 ERW, 2017 WL 193560, at *1 (E.D. Mo. Jan. 18, 2017).

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