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Third Circuit Finds That TCPA Claim May Proceed Based Upon Intangible Injury  

On July 10, 2017, the Third Circuit Court of Appeals reversed a District Court dismissal of a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA). In Sussino v. Work Out World, Case No. 16-13277, the defendant placed an unsolicited call to the plaintiff and, when not answered, left a pre-recorded message concerning a promotional offer. A mere two days later, the plaintiff filed a putative class action complaint alleging that the defendant’s unsolicited call and voicemail message violated the TCPA. Following an amendment to the underlying pleading, the District Court of New Jersey dismissed the Complaint on the basis that (a) the single call and message to a cell phone were not the type of conduct that Congress sought to prohibit through the TCPA and (b) the plaintiff had not suffered any concrete injury. The decision was appealed to the Third Circuit Court of Appeals. 

The Third Circuit found that the single, unsolicited call violated the TCPA and was sufficient to establish a concrete harm for purposes of Article III standing. The matter largely turned on the Third Circuit’s January 2017 ruling In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3d Cir. 2017), and its application of the Supreme Court’s decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016). In Spokeo v. Robins, the Supreme Court held that Article III standing required a concrete injury even in the context of a statutory violation but acknowledged that in certain circumstances longstanding jurisprudence or Congressional action could establish an intangible harm as a legally cognizable injury. Horizon involved a Fair Credit Reporting Act (FCRA) claim arising from a data breach. There, the Third Circuit found that an alleged statutory violation satisfied injury requirements for standing and acknowledged that when certain regulated or prohibited conduct occurred, it could satisfy standing requirements regardless of whether any tangible or physical harm resulted. As originally confirmed in Spokeo, certain proscribed conduct - as established either through longstanding common law principles and/or as a result of Congressional action acknowledging a fundamental right - can constitute a concrete injury. 

In Sussino v. Work Out World, the Third Circuit extended its holding in Horizon to claims involving the TCPA finding that the isolated call represented a nuisance or invasion of privacy, which the TCPA prohibited. Furthermore, the Court noted that the harm associated with the invasion of one’s privacy had a longstanding existence in both American and English courts. Accordingly, by alleging a violation of the TCPA the claimant adequately pleaded a concrete injury. The Court explained that “when one sues under a statute alleging the very injury the statute is intended to prevent, and the injury has a close relationship to a harm traditionally providing a basis for a lawsuit in English and American courts, a concrete injury has been pleaded.”

The Sussino holding, albeit limited to the TCPA, further signals the receptive environment afforded to class action plaintiffs and their counsel choosing to litigate statutory claims within the Third Circuit. The TCPA is one of the more concerning federal legislations to individuals and entities that interact and market with consumers in that it carries penalties between $500 and $1,500 per violation, with no cap on  liability and provides for class relief and fee shifting. As described by the United States Chamber of Commerce, which filed an amicus brief in Sussino, the "TCPA has become a bludgeon used by the plaintiffs' bar to extract millions of dollars from businesses that inadvertently send text messages or make phone calls in alleged violation of the TCPA's technical requirements.” Presumably, the holding in Sussino will encourage and attract additional putative class action claims involving the TCPA to the Third Circuit. 

A copy of the Third Circuit’s holding can be found here

  • Partner

    Andrew Sayles defends financial institutions and their service partners in complex litigation and class actions, with a particular emphasis on issues related to consumer financial services regulation. He also advises clients in ...

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