Another ruling at the District Court level has provided further ammunition that trying to use a Spokeo defense in a Telephone Consumer Protection Act case is not going to work.
In this case, an individual received two unsolicited phone calls from a bank during a six-month period last year. The plaintiff requested not to be contacted again after the first call, sent an email to the bank’s customer service department asking not to be contacted, but was still called a second time.
Judge Virginia Emerson Hopkins of the Northern District of Alabama issued a 37-page ruling denying a motion from the defendant to dismiss the charges. A copy of the ruling can be accessed here.
Compass attempted to use a Supreme Court ruling in the case of Spokeo v. Robins which said that in order to be able to seek relief in a federal court, an individual must suffer an “injury in fact,” meaning that some degree of damages must be incurred. Compass argued that the plaintiff suffered no damages by receiving two calls on his cell phone that were placed by an automatic telephone dialing system even though the plaintiff had not provided his consent to be contacted. Hossfield argued that the calls “were a nuisance which briefly deprived [him] of the use of his phone, invaded his personal privacy, and wasted his time.” Additionally, the plaintiff “incurred a reduction in his cellular battery life as a result of Defendants’ calls.”
Hopkins used an Eleventh Circuit Court of Appeals decision in the case of Palm Beach Golf Center v. John G. Sarris that ruled one unsolicited fax was enough to warrant a concrete injury and thus overrule a Spokeo defense.
Compass attempted to argue that the plaintiff may have suffered some minor injury but whatever was suffered fell below the threshold meant to be deemed illegal under the TCPA.
In determining concreteness, the District Court judge used Sussino v. Work Out World, a Third Circuit Court of Appeals case that ruled one unsolicited phone call was enough to cause a concrete injury.
