In Lennartson v. Papa Murphy’s Holdings, Inc., 2016 WL 51747, at *1-2 (W.D.Wash., 2016), Judge Leighton stayed a TCPA class action pending Spokeo even though the Court recognized that the Plaintiff suffered actual damages and thus had Article III standing.

In 2011, Papa Murphy’s started texting those who had signed-up on its website to receive promotional messages and those who had texted numbers appearing in its advertisements. Its website informed consumers that they would receive four text messages per month and that message and data rates might apply. Lennartson registered through Papa Murphy’s website in March 2012 to receive promotional text messages. Papa Murphy’s texted him at least eleven times… The FCC ruled in 1992 that absent instructions to the contrary, persons who knowingly released their phone numbers consented to be autodialed. . . .The FCC revised this ruling in February 2012, concluding that the required prior express consent must be in writing. . .  In July 2015, the FCC [ruled] that consent was not compliant merely because it was in writing.  To be sufficient, the consent had to meet the definitional requirements of “prior express written consent” that the FCC’s 2012 Order had outlined and had given telemarketers nearly two years to meet.

The District Court found that the defendant failed to comply with the 2015 rules because “[i]t continued to text Lennartson after October 16, 2013 without disclosing that it was using an autodialing system to do so. See 2012 Order, 27 FCC Rcd. at 1843–44, 1857, 1863.”  Nevertheless, the District Court stayed the Action pending the outcome of Spokeo, Inc., even though the District Court recognized that the Plaintiffs probably suffered actual damages.

Lennartson has articulated actual harm, explaining that consumers often must pay their cell phone service providers for each message received. See Dkt. #1, ¶ 4, ¶ 46 (“As a result of Defendants’ violation, the members of the Class suffered actual damages by, inter alia, having to pay their respective wireless carriers for the text messages where applicable.”). He will have standing regardless of the Supreme Court’s decision.  But Spokeo could simplify or complicate the class certification process. For example, it could limit the size of Lennartson’s putative class to those who paid their providers for each message Papa Murphy’s sent them. Little advantage to proceeding with discovery and motions practice in the interim exists. Therefore, to promote the orderly course of justice, Papa Murphy’s motion to stay the case until the Supreme Court resolves Spokeo is GRANTED.