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TCPA Class Action & Litigation Update: Are Post-Spokeo Challenges to Article III Standing in TCPA Cases Dead?

The U.S. Supreme Court’s Spokeo v. Robins decision held that plaintiffs do not have standing to sue under Article III based solely on technical violations of the Fair Credit Reporting Act. Ever since the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1536, defendants have filed motions to dismiss putative TCPA class actions for lack of subject-matter jurisdiction. But while defendants have argued in such cases that a single call (or text or fax), without more, is not enough to qualify as a “concrete” injury for Article III standing purposes, the argument has not gained significant traction. See Manuel v. NRA Group LLC, 2018 WL 388622 (3d Cir. Jan. 12, 2018); Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017); Florence Endocrine Clinic, PLLC, 858 F.3d 1362 (11th Cir. 2017); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); Hossfeld v. Compass Bank, 2017 WL 5068752 (N.D. Ala. Nov. 3, 2017). But see Winner v. Kohl’s Dep’t Stores, Inc., 2017 WL 3535038 (E.D. Pa. Aug. 17, 2017) (granting Rule 12(b)(1) motion to dismiss for lack of standing in TCPA case where the plaintiff had consented to receive the defendant’s commercial text messages).

The Ninth Circuit recently threw a wrench in the mix with its ruling on remand of Spokeo that the plaintiff’s alleged injury was sufficiently concrete to meet the court’s new standard. Spokeo petitioned for certiorari again. It argued that there has been “widespread confusion” in application of the standing requirements and that the plaintiff’s injuries in Spokeo are too speculative. That confusion is well-illustrated by the fact that on a single day in January of this year, the Third Circuit revived a putative class action under the FCRA based on a data breach with no alleged misuse of the data (In re Horizon Healthcare Services, Inc.), and the Seventh Circuit affirmed dismissal of a class action under the Cable Communications Policy Act because former customers had not alleged any concrete injury stemming from improper retention of personal information. (Gubala v. Time Warner Cable).

We hope that the Supreme Court grants certiorari to develop and clarify the “concrete and particularized” pleading requirements of Article III standing as soon as another case with a similar issue is before the court.

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Joshua Briones

Member / Managing Member, Los Angeles Office

Joshua Briones is a commercial litigator who defends consumer class actions for Mintz. He's represented clients in a wide range of industries, including financial services, life sciences, manufacturing, and retail, in cases involving false advertising, unfair trade practices, and other claims.