Spokeo Again Fails Defendants at the Third Circuit

Susinno v. Work Out World, Inc., ___ F.3d ___ (3d Cir. 2017).  Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), discussed here, was a case in which class action defendants put great stock.  They hoped to use it to defeat cases based on lack of “concrete” injury.  The Third Circuit, however, has repeatedly rebuffed those attempts.  Earlier this year, the court reversed a Spokeo-based dismissal in In re Horizon Healthcare Services Data Breach Litig., 846 F.3d 625 (3d Cir. 2017), discussed here.  That case followed two prior privacy cases that had likewise rejected Spokeo arguments.  This week, in an opinion by Judge Hardiman, the Third Circuit reversed another dismissal, in a case under the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”), that had been premised on Spokeo.

Plaintiff had received a single unsolicited call on her cellphone from defendant.  She did not answer the call, and defendant left a voicemail message that lasted one minute.  The TCPA prohibits prerecorded calls to cellphones, and plaintiff filed a putative class action suit based on the call that she had received.  Defendant moved to dismiss, and the District Court granted that motion.  On plaintiff’s appeal, the Third Circuit reversed.

Judge Hardiman framed two issues for decision, both of which implicated de novo review.  “Does the TCPA prohibit the conduct alleged by Susinno?  And if it does, is the harm alleged sufficiently concrete for Sussino to have standing to sue under Article III of the United States Constitution?”  The panel answered “yes” to both questions.

The language of the TCPA itself answered the first question.  Judge Hardiman easily found two different ways in which that was so.

The more intricate question was whether plaintiff’s injury was sufficiently “concrete” under Spokeo.  Relying on Horizon, whose holding Judge Hardiman summarized as “[w]hen one sues under a statute alleging the very injury [the statute] is designed to prevent, and the injury has a close relationship to a harm … traditionally … providing in English or American courts, a concrete injury has been pleaded,” the panel found a concrete injury here, for two reasons.

“First, Congress squarely identified this injury….  We therefore agree with Susinno that in asserting ‘nuisance and invasion of privacy’ resulting from a single prerecorded telephone call, her complaint asserts the very harm that Congress sought to prevent, arising from prototypical conduct proscribed by the TCPA.”  Second, the historical test of Spokeo confirmed the concreteness of plaintiff’s injury.  Where a new cause of action protects “essentially the same interests that traditional causes of action sought to protect,” there is concreteness.  Here, the common law has protected against intrusions upon seclusion, but one phone call, or even a few, would not support a common law action.  The TCPA, however, “elevated a harm that, while previously inadequate in law, was of the same character of previously existing legally cognizable injuries.  Spokeo addressed, and approved, such a choice by Congress.”

Judge Hardiman concluded “”[w]here a plaintiff’s intangible injury has been made legally cognizable through the democratic process, and the injury closely relates to a cause of action traditionally recognized in English and American courts, standing to sue exists.”  Spokeo thus failed defendants once again.

 

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