In Cordoba v. DIRECTV, LLC, No. 18-12077, 2019 U.S. App. LEXIS 34146 (11th Cir. Nov. 15, 2019), the Court of Appeals for the 11th Circuit renewed the bite of Lujan’s ‘fairly traceable’ component of Article III standing, remanding to the District Court for it to re-do it’s analysis certifying a TCPA class against DIRECT TV.
DIRECTV’s second argument — that class members who did not ask Telecel to stop calling fail to meet Lujan’s traceability requirement — is more persuasive. Article III standing requires a “causal connection between the injury and the conduct complained of” — in other words, the injury must be “fairly traceable to the challenged action of the defendant.” Lujan, 504 U.S. at 560 (quotation omitted and alterations adopted). As the Court explained in Simon v. East Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976), “plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction,” because Article III “requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Id. at 41-42 (quotation omitted); see also Allen v. Wright, 468 U.S. 737, 753 n.19, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984), abrogated in part on other grounds by Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014) (holding that parents lacked standing to sue the IRS for their children’s diminished ability to receive an education in a racially integrated school because, even though this was a cognizable injury, “whatever deficiencies exist in the opportunities for desegregated education for [plaintiffs’] children might not be traceable to IRS violations of law”). Following Lujan, we’ve said that “an injury is not fairly traceable to the actions of a defendant if caused by the ‘independent action of some third party not before the court’ and likewise a controversy is not justiciable when a plaintiff independently caused his own injury.” Swann v. Secretary, 668 F.3d 1285, 1288 (11th Cir. 2012) (quoting Lujan, 504 U.S. at 560). We’ve made it clear that the traceability requirement is less stringent than proximate cause: “[e]ven a showing that a plaintiff’s injury is indirectly caused by a defendant’s actions satisfies the fairly traceable requirement.” Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012). Thus, “for standing purposes [a plaintiff] is not required to prove causation beyond a reasonable doubt or by clear and convincing evidence.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003) (emphasis omitted). Cordoba, as the named plaintiff, has no problem meeting the traceability requirement: the complaint squarely alleges that he repeatedly asked Telecel and DIRECTV to stop calling him, Telecel didn’t keep a list of all those who asked not to receive calls, and he later suffered the injury of receiving many phone calls, which would not have happened if Telecel had maintained an internal do-not-call list and abided by it. Similarly, this is not a problem for the class based on calls made to individuals on the National Do Not Call Registry, since those whose numbers are on the Registry and nevertheless received marketing calls suffered an injury that is traceable to Telecel’s misconduct — if Telecel had followed the law and not called numbers on the Registry, they would not have been injured. But if an individual not on the National Do Not Call Registry was called by Telecel and never asked Telecel not to call them again, it doesn’t make any difference that Telecel hadn’t maintained an internal do-not-call list. Telecel could and would have continued to call them even if it had meticulously followed the TCPA and the FCC regulations. For these individuals, then, their injury wouldn’t be “fairly traceable to the challenged action of the defendant.'” Lujan, 504 U.S. at 560 (quoting Simon, 426 U.S. at 41) (emphasis added and alterations adopted). There’s no remotely plausible causal chain linking the failure to maintain an internal do-not-call list to the phone calls received by class members who never said to Telecel they didn’t want to be called again. These plaintiffs therefore would lack Article III standing to sue. Our decision in Swann v. Secretary, 668 F.3d 1285 (11th Cir. 2012), is instructive. There, an inmate in a Georgia county jail sued after he failed to receive an absentee ballot. Id. at 1287. He claimed that a Georgia statute requiring that absentee ballots be sent to the address listed in the voter registry as the voter’s permanent mailing address was unconstitutional. Id.; see Ga. Code Ann. § 21-2-381(a)(1)(D). But we held that Swann lacked standing to bring this claim, because he never asked for the absentee ballot to be sent to the jail — on the absentee ballot application, he listed his permanent address as his “Address as Registered,” and left the space for his “Address (Ballot to be mailed)” blank. Id. Because his “failure to provide the address of the jail on his application independently caused his alleged injury,” his claimed injury was not traceable to the defendants’ challenged actions. Id. at 1289. Swann would have been injured in precisely the same way even if the state officials had not engaged in the conduct that he claimed was unlawful, just like the absent class members here who did not ask Telecel to stop calling them. Simply put, “a plaintiff lacks standing to challenge a rule if an independent source would have caused him to suffer the same injury.” Id. at 1288. Under that principle, the absent class members who did not call Telecel would not have been on the internal do-not-call list and therefore would lack standing because of the failure to trace the injury to the unlawful conduct. Cordoba attempts to salvage the standing of the class members who did not ask Telecel not to call them, arguing that DIRECTV injured them while engaging in a program of “unrestricted telemarketing,” which is the exact harm the TCPA was expressly intended to prevent. But this gets them no closer. If the injury asserted by unnamed putative class members is just that DIRECTV violated regulations under the TCPA by engaging in telemarketing without maintaining an internal do-not-call list, that claim runs smack into the Spokeo problem of asserting a “bare procedural harm” untethered to a concrete and particularized injury in fact. And if the “unrestricted telemarketing” argument depends on their injury in fact of receiving unwanted phone calls, it fails for the reason we’ve already discussed: the receipt of a call is not traceable to Telecel’s failure to comply with the internal do-not-call list regulations if the recipient wouldn’t have been on the list in the first place even if it had been maintained. In short, the allegation that the absent class members were injured while DIRECTV engaged in an “unrestricted telemarketing” campaign does not add anything to the argument — Lujan requires that the plaintiffs allege a concrete and particularized injury in fact that is fairly traceable to the defendant’s wrongful conduct. The class members who did not ask Telecel to stop calling them cannot do so.