Third Circuit’s Spokeo Decision Applied by Alabama District Court

by Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

The Third Circuit’s standing opinion in Sussino v. Work Out World Inc. might be having a ripple effect at the district court level, most recently in an opinion issued in a putative Telephone Consumer Protection Act (TCPA) class action pending over 800 miles away in the Northern District of Alabama, which is part of the Eleventh Circuit.

In Hossfeld v. Compass Bank, et al., Hossfeld alleges that the defendants—the bank and its marketing partner—made two unsolicited calls to his cell phone over a six-month period in 2016, positing that the calls were a “nuisance” that invaded his personal privacy, wasted his time and drained his cellphone battery life. Like most TCPA plaintiffs, Hossfled alleged no actual economic damages or tangible injury. The plaintiff also alleged that he had informed the defendants that they had reached the wrong person and requested not to be called again after the first call and that he even subsequently emailed the bank’s customer service department to notify them that they had violated federal law and even threatened a lawsuit, but the defendants still called him a second time.

Moving to dismiss, the defendants cited a number of cases supporting an argument that the defendants’ alleged actions amounted to nothing more than a mere technical statutory violation of the TCPA insufficient to confer Article III standing. In her lengthy 37-page opinion, the trial judge disagreed, citing a handful of pre­-Spokeo decisions from the Eleventh Circuit, but relying primarily on the Third Circuit’s July 2017 decision in Sussino.

In Sussino, the Third Circuit held that a single voicemail can be a sufficiently “concrete injury” to confer standing under the Supreme Court’s 2016 decision in Spokeo v. Robins. Along these lines, the Hossfeld decision rejected the various authority cited by the defendants that, in her view, “utiliz[ed] a de minimis approach to evaluating concreteness, [and] have found that a TCPA claim lacks that component when a plaintiff is complaining about only one or two unsolicited communications via a telephone call, voicemail message, text message, or facsimile.” Consequently, she ruled that (i) as in Sussino, the plaintiff there had not merely alleged a mere technical violation of the TCPA and (ii) “[i]nstead, the contact [allegedly] falls squarely within the scope of what the TCPA makes unlawful []—a nonemergency call made to Mr. Hossfeld’s cell phone number without his permission using an automatic telephone dialing system.” The court also rejected the defendants’ traceability argument, concluding that “the link between Mr. Hossfeld’s intrusion injury and Compass’s conduct is neither speculative, nor attenuated, nor indirect.”

Notably, the primary post-Spokeo Eleventh Circuit opinion that the trial judge relied upon in Hossfeld was Florence Endocrine Clinic, PLLC v. Arriva Med. LLC, a junk fax case where the plaintiff allegedly received four unsolicited faxes from the defendant in a single month, holding that the alleged injuries were sufficiently concrete because the “plaintiff’s fax machine was occupied and rendered unavailable for legitimate business while processing the unsolicited fax.”

To read the opinion in Hossfeld v. Compass Bank, et al., click here.

Why it matters: Hossfeld demonstrates that the Spokeo strategy in TCPA cases has been largely rejected by courts to consider it. The court also noted that a second call was made even after the plaintiff told the caller it had reached the wrong number and emailed the bank’s customer service asking not to be called and threatening a lawsuit. Those involved in handling corporate TCPA compliance should take a lesson from this alleged failure at the corporate level and ensure that mechanisms are in place to promptly address such requests.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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