Two unsolicited phone calls are concrete injury for standing purposes, Illinois district court says

The Plaintiff in Abante Rooter & Plumbing, Inc. v. Oh Insurance Agency, No. 15-CV-9025 (N.D. Ill. Feb. 20, 2018) brought a class action under the TCPA alleging they used an autodialer to make two unsolicited and pre-recorded sales calls to Plaintiff’s cellular phone. One call went to voice-mail and the other was answered by Plaintiff’s principal who complained that the calls interrupted his business, were annoying, and seized and trespassed upon the use of its cell phone. This was enough, the court held, to show standing.

Defendant moved to dismiss claiming subject matter jurisdiction was lacking because Plaintiff did not allege a concrete injury to establish Article III standing under Spokeo v Robins ,136 S.Ct. 1540 and because Defendant’s offer of judgment and deposit of $15,000 into an escrow account with a trusted intermediary mooted Plaintiff’s claims under Campbell-Ewald v. Gomez, 136 S.Ct 663 (2016).

On the standing question, the court found that Plaintiff alleged a concrete harm to the interest Congress sought to protect in enacting the TCPA. Unlike the statute at issue in Spokeo, the TCPA does not require the adoption of procedures to decrease congressionally-identified risks. Rather, the TCPA prohibits making certain kinds of telephonic contact with consumers without first obtaining their consent. It directly forbids activities that by their nature infringe the privacy-related interests that Congress sought to protect by enacting the TCPA. There is no gap — there are not some kinds of violations that do not result in the harm Congress intended to curb, namely, the receipt of unsolicited telemarketing calls that by their nature invade the privacy and disturb the solitude of their recipients.

Defendant suffered a particularized injury as well: trespass and occupation of its cell phone line, interruption of its business, and distraction of its principal, who devoted time to the defendants’ unwanted calls instead of to Plaintiff’s business. Defendant was wrong when it argued that the alleged injuries were suffered not by Plaintiff, but by Plaintiff’s principal. The Complaint sufficiently plead that the unwelcome calls interrupted the operation of Plaintiff’s business and occupied its worker. The waste of the worker’s time is a waste of Plaintiff’s resources.

The court was also unconvinced that because Plaintiff received only two calls, it alleged at most a de minimis injury insufficient to confer standing. In enacting the TCPA, Congress was not inventing a new theory of injury, but rather, elevating a harm that, while previously inadequate in law, was of the same character of previously existing legally cognizable injuries.

The court also rejected Defendant’s argument that the unaccepted offer of judgment and deposit of funds into an escrow account for Plaintiff’s benefit prior to certification of any putative class claims mooted Plaintiff’s claims and deprived Plaintiff of standing to represent a class. There is no principle distinction, the Court found, between attempting to force a settlement on an unwilling party through Rule 68 offer of judgment and attempting to force a settlement on an unwilling party through Rule 67. In either case, all that exists is an unaccepted contract offer which is not binding on the offeree. An unaccepted offer cannot moot a case.

Download Related Document