In Aranda v. Caribbean Cruise Line, Inc., 2016 WL 4439935, at *6–7 (N.D.Ill., 2016), Judge Kennelly found post-Spokeo standing for a TCPA class representative and said that individual inquiries regarding class members’ standing did not affect class certification.
The Court respectfully disagrees with the reasoning of the judge in Aitima Medical Equipment. In contrast to statutes that impose obligations regarding how one manages data, keeps records, or verifies information, section 227 of the TCPA directly prohibits a person from taking actions directed at consumers who will be actively touched by that person’s conduct. It does not matter whether plaintiffs lack additional tangible harms like loss of cell phone battery life, actual annoyance, and financial losses; Congress has identified that such unsolicited telephonic contact constitutes an intangible, concrete harm, and plaintiffs have alleged such concrete harms that they, themselves suffered. Their injuries are concrete and particularized, traceable to defendants’ conduct, and judicially redressable. For these reasons, the Court overrules defendants’ argument for summary judgment based on plaintiffs’ purported lack of standing. The same reasoning also explains why defendants’ argument for decertification cannot carry the day. Defendants insist that because a mere statutory violation does not equate to a concrete harm sufficient to establish an injury in fact, the only plaintiffs with standing to sue would be those who suffered additional harm beyond the mere violation of their statutory rights—namely, plaintiffs who claim to have incurred monetary costs from the calls they received and plaintiffs who were in fact irritated or annoyed by the calls. Accordingly, defendants argue that whether and to what extent each plaintiff was injured is a question that must be answered individually for each plaintiff. This argument fails for two reasons. First, all of the plaintiffs in the two certified classes have alleged a common, concrete injury. As explained above, the intangible, concrete injury plaintiffs allege is that defendants violated a right Congress sought to protect through section 227: the right to be free from prerecorded non-emergency telemarketing calls they did not consent to receive. This concrete injury is alleged to have been suffered by every plaintiff—even plaintiffs who completed the survey, spoke with a CCL representative, and accepted defendants’ vacation offer had a right to be free from unsolicited telemarketing calls, just as a homeowner has a right to be free from trespass even if she accepts a gift from the trespasser after he commits the offense. The key common question is whether defendants made unlawful calls to plaintiffs using a prerecorded voice without consent to make them; plaintiffs win if the answer to this question is yes, and defendants win if the answer is no. The classes therefore meet the commonality requirement imposed under Rule 23(a). Second, given plaintiffs’ choice to seek only statutory damages, common issues very clearly continue to predominate over individual ones. Defendants may be right that some plaintiffs were more irritated by the calls than others and some experienced monetary losses while others did not. But plaintiffs seek redress only for the single, common injury inflicted by violating their rights to be free from unsolicited telemarketing calls. To determine whether such an injury occurred, a jury need not determine the degree to which each plaintiff was annoyed, the amount of battery life or prepaid minutes each plaintiff lost, or the charges each plaintiff incurred for the calls. Foregoing their right to seek actual damages based on their injuries has no effect on plaintiffs’ standing to sue, for, as another court in this district recently noted, ‘[w]hether a case is within a court’s power to adjudicate does not turn on the potential offsets to the alleged injury.‘ Johnson v. Yahoo!, Inc., No. 14 C 2028, Tr. of Rec. at 7:12–14 (N.D. Ill. July 25, 2016). But the fact that plaintiffs seek only statutory damages does affect whether their injuries must be determined on an individual basis. Because plaintiffs seek only the set statutory amount, factors that might affect the gravity of any variegated actual losses plaintiffs may have suffered are irrelevant. Thus the classes, as certified, continue to satisfy Rule 23(b)(3)’s predominance requirement.