In Toldi v. Hyundai Capital America, 2017 WL 736882, at *2–3 (D.Nev., 2017), Judge Gordon found that a TCPA plaintiff had standing to sue, and declined to stay the proceedings pending the outcome of the ACA Int’l decision.
A vast number of cases have addressed whether a plaintiff receiving automated calls that violate the TCPA is the sort of intangible harm that confers standing. And virtually all of them agree that it does.8 These courts point to the fact that both Congress and history suggest that TCPA violations create concrete injuries. As to Congressional guidance, in passing the TCPA in 1991, Congress meant to combat a substantive harm, not just a procedural one. Congress was aiming to protect consumers from the “nuisance, invasion of privacy, cost, and inconvenience that autodialed and prerecorded calls generate.”9 In this way, the TCPA is different from statutes that can be violated without harming a consumer, such as statutes that merely regulate how companies manage data or keep records.10 By passing legislation that explicitly protects consumers from receiving autodialed calls, Congress identified a concrete injury that confers standing. And as to history, when a person must endure the bother of unwanted calls in the privacy of her home, her harm is similar to other traditional injuries that courts have long recognized, such as invasion of privacy and nuisance.12 Indeed, the Supreme Court has acknowledged that the TCPA protects against “an intrusive invasion of privacy” and that automated calls “were rightly regarded by recipients as ‘an invasion of privacy.’ ” Hyundai cites to a single outlier case to support its position that a violation of the TCPA does not create a concrete injury: Romero v. Department Stores National Bank. This case has been heavily criticized, and for good reason. The court there ignored the fact that intangible harms like the one Toldi suffers here have long been recognized in the caselaw and now by Congress. Romero is also distinguishable given that it was decided at the summary judgment stage, not the motion to dismiss stage as is the case here.16 I find more persuasive the approach taken by the majority of other courts: by alleging that she received robocalls in violation of the TCPA, Toldi has alleged that she suffered a concrete injury for purposes of standing. And even if I were to require more, Toldi alleges that she suffered additional concrete injuries. She alleges that Hyundai’s robocalls caused her stress, that they interfered with her ability to use her cell phone (which is obviously true at least during the periods that she answered calls from Hyundai), and that receiving these calls caused her “out of pocket losses, including monies paid to her wireless carrier for the receipt of [Hyundai’s] calls.” As to this last injury, Hyundai contends that Toldi has not shown that she actually suffered these losses. But proving that her specific allegations are true is a matter for trial, not a complaint. Toldi specifically alleges that she paid for Hyundai’s calls—neither I nor Hyundai can question that allegation at this stage. Toldi has sufficiently alleged that she has standing to sue, so I deny Hyundai’s motion to dismiss. B. I decline to grant a stay. In the alternative, Hyundai asks that I stay this case pending the D.C. Circuit’s decision in ACA International v. Federal Communications Commission. The D.C. Circuit is considering whether to overturn a recent FCC Order that interprets provisions of the TCPA. Hyundai contends that if the FCC’s interpretations of key TCPA provisions are overruled, that might impact whether Hyundai is liable in this case. I have broad discretion in deciding whether to stay a case. I may consider “factors such as any potential prejudice to the non-moving party, hardship or inequity to the moving party if the proceedings are not stayed, and the interests of judicial economy and efficiency.” A stay is not warranted at this stage. Hyundai vaguely suggests that “[c]ore issues in this case lie at the heart of ACA’s petition for review.” But it does not explain precisely what those core issues are or how the D.C. Circuit’s decision might specifically impact this case or Hyundai’s defense strategy. And a stay would prejudice Toldi by delaying this case indefinitely while that other case winds its way through the appellate process including, potentially, to the Supreme Court. Hyundai’s conclusory statements thus do not convince me that a stay is warranted at this time.