One errant solicitation call to the wrong person’s cellphone is all it takes to trigger liability under the TCPA. That was the essence of last week’s decision by the Third Circuit Court of Appeals in the putative class action Susinno v. Work Out World, Inc. Judge Hardiman – joined by judges Krause and Stengel – resolved two live issues in the Circuit, and struck fear into the heart of businesses that rely on solicitation calls.
One Solicited Call Not “Exempt” Even If the Called Party Is Not Charged for the Call
Plaintiff Noreen Susinno, on behalf of a purported class of persons that received one unsolicited call from defendant Work Out World, brought a class action for violation of the Telephone Consumer Protection Act (TCPA). As explained by the Court of Appeals, “the TCPA provides consumers with a private right of action for certain prohibited uses of automated telephone equipment.” Incredibly, Ms. Susinno didn’t even answer the allegedly illegal call, which went directly to her voicemail.
The trial court had dismissed the suit in part because a single solicitation was not “the type of case that Congress was trying to protect people against.” Work Out World had successfully argued that a single call to a cellphone, where the called party wasn’t actually charged for the call, doesn’t violate the TCPA. The Third Circuit disagreed and reversed the decision, aligning itself with the Eleventh Circuit on the issue. It matters not that the called party wasn’t charged for the call, only that the call was made without consent.
No Go for the Spokeo Defense
The trial court had dismissed Ms. Susinno’s claims for the additional reason that her receipt of the call and voicemail “caused her no concrete injury.” In doing so, the trial court invoked the U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, which clarified in that in order for a plaintiff to have standing to sue in federal court, the plaintiff must suffer a “concrete injury even in the context of a statutory violation.” What has followed in the last year is an intense push by the defense bar to assert Spokeo in virtually all cases where the plaintiffs assert mere “procedural violations” of statutes such as the TCPA. Attorneys for Work Out World (with supporting briefs from the U.S. Chamber of Commerce) argued that because the plaintiff did not pick up the illegal call, she suffered no concrete injury, and therefore lacked standing. The Third Circuit disagreed. While acknowledging the limiting principle in Spokeo, the Court still ruled that the plaintiff sustained an injury to her “privacy rights.” Such an injury was sufficiently “concrete,” albeit “intangible,” to grant the plaintiff standing to pursue her TCPA claim in federal court.