Duane Morris TCPA Class Action Review – 2024

message shared a close relationship with the harm underlying the tort of intrusion upon seclusion, and thus, receipt of an unwanted text message causes a concrete injury. Id. at 1345. The Eleventh Circuit concluded that receiving a single unwanted text message constituted a concrete injury, and remanded the case to consider the CAFA issues. Id. at 1346. The court in Stamler, et al. v. Guardian Savings Bank, 2023 U.S. Dist. LEXIS 112098 (S.D. Ohio June 28, 2023), reached a similar conclusion. The plaintiff filed a class action alleging that the defendant, with whom she had no prior business relationship and without her consent, placed 13 calls and delivered artificial or prerecorded voice messages to her cellular telephone in violation of the TCPA. The plaintiff specifically alleged that the voice messages stated that the defendant had an “important message for Emily” (who plaintiff claimed she did not know), urging the plaintiff to return the calls. As a result, the plaintiff alleged that she “suffered actual harm as a result of the defendant ’ s calls” including “an invasion of privacy, an intrusion into her life, [and] a private nuisance,” and “was forced to spend time trying to determine who the calls were from and how to get them to stop.” Id. at *2-3. The defendant moved to dismiss the complaint on grounds that the plaintiff lacked Article III standing, arguing that plaintiff ’ s alleged injuries were “intangible” and “not the type of concrete injury that can satisfy Article III.” Id. at 3. While acknowledging that a “concrete injury” is required for Article III standing, and that the plaintiff did not allege injury of a tangible nature, i.e. , an “increase in her cellular phone bill,” the court noted that recent Sixth Circuit case law authorities have squarely held that a plaintiff ’ s receipt of a single unwanted voicemail “is injury enough” to establish Article III standing. Id. at *4. In doing so, the court rejected the defendant ’ s attempt to prevail by arguing that the calls at issue, i.e., unintentional calls directed at “Emily B” that contained an affirmative statement that the call was “not a solicitation call,” were “not the type of harm the TCPA is intended to protect.” Id. at *4. Noting the undeveloped factual record, the court called out the defendant ’ s lack of any controlling case law to support its argument. Id. at *5. Accordingly, the court denied the defendant ’ s motion to dismiss. Moreover, in Saggio, et al. v. Medicredit, Inc., 2023 U.S. Dist. LEXIS 76191 (E.D. Mo. May 2, 2023), the plaintiff filed a class action alleging the defendant, a medical debt collector, violated the TCPA by placing prerecorded robocalls to his cellular telephone without his consent. Specifically, the plaintiff claimed he received a prerecorded robotic message from defendant attempting to collect a consumer debt from an individual named “Lucy.” Id. at 2. The defendant moved to dismiss the complaint, arguing that the plaintiff did not suffer an injury-in-fact and thus lacked standing. Alternatively, the defendant sought dismissal of the complaint for failure to state a claim, arguing the facts as pled did not establish a TCPA violation because he failed to plead the absence of consent. The defendant argued that at a minimum, the court should strike the class allegations. The court denied defendant ’ s motion in its entirety. With respect to standing, the court ruled that receiving a robocall was considered a concrete injury under the TCPA and “the type of nuisance the TCPA was intended to address.” Id. at 5. The court further noted that plaintiff did plead actual injury, even if it was arguably de minimus , i.e. , invasion of privacy, an intrusion on his right to seclusion, an interruption in his daily life, a waste of his time, frustration and a depletion of his phone battery. Id. at 6-7. Finally, the court rejected the defendant ’ s argument that plaintiff failed to plead facts demonstrating that the defendant caused the injury, which it claimed did not actually occur until the plaintiff answered the phone. The court reasoned that defendant ’ s statutory construction would lead to the “absurd inference that the plaintiff injured himself by answering the phone,” rejecting it outright. Id. at *7. With regard to the defendant ’ s argument that the plaintiff failed to plead the absence of consent, the court noted that the plaintiff specifically pled that the defendant placed a call to his cell phone using a prerecorded or artificial voice “without his prior express consent.” Id. at *9. The court further found support for the notion that lack of consent is an affirmative defense that needs to be proved by the defendant, and that at the motion to dismiss stage the plaintiff is entitled to “the reasonable inference that he is the subscriber.” Id. at *9. Finally, the defendant moved to strike the class allegations, arguing that individual differences in standing and consent issues would predominate and therefore preclude class certification. However, the court was not convinced that these individual differences would override common class claims, and reserved ruling on class certification for later proceedings. Id. at *13. The court therefore denied the defendant ’ s motion to dismiss the complaint and strike class allegations.

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