CEB Prac. Guide § 2B.11: Standing

In Chennette v. Porch.Com, Inc., No. 20-35962, 2022 U.S. App. LEXIS 28354, at *1-4 (9th Cir. Oct. 12, 2022), the panel reversed the district court's judgment dismissing a complaint, brought by 51 individuals who are home improvement contractors, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b) and (c); and remanded.  GoSmith's and Porch.com's business model… Read More

In Barton v. Serve All Help All Inc., No. 3:21-cv-5338 RJB, 2022 U.S. Dist. LEXIS 161487, at *8 (W.D. Wash. Sep. 7, 2022), Judge Bryan denied summary judgment all around, but also denied a TCPA defendant's jurisdictional motion. Defendant argues that the Plaintiff cannot show that he has been "injured in fact" because he has not shown that he has… Read More

In Lynch v. Aml Network, No. CV 21-3574-GW-RAOx, 2021 U.S. Dist. LEXIS 187234, at *11-14 (C.D. Cal. Sep. 27, 2021), Judge Wu kept jurisdiction over a state-law anti-spam case, disagreeing with the Plaintiff that he did not have Article III standing. Findings (e) and (h) explicitly compare the harms caused by spam emails to injuries caused by junk faxes and… Read More

In Cranor v. 5 Star Nutrition, L.L.C., No. 19-51173, 2021 U.S. App. LEXIS 15795 (5th Cir. May 26, 2021), the Court of Appeals for the Fifth Circuit found Art. III standing arising from the sending of a single text message. On similar facts, the Eleventh Circuit concluded there is no common law analogue to the harm of receiving an unwanted… Read More

In Leyse v. Bank of Am. Nat'l Ass'n, No. 20-1666, 2021 U.S. App. LEXIS 14897, at *1-3 (3d Cir. May 19, 2021), the Court of Appeals for the Third Circuit found that a TCPA Plaintiff had no standing. On March 11, 2005, DialAmerica Marketing, Inc., on behalf of Bank of America, called the residential telephone line that Leyse shared with… Read More

In Aleisa v. Square, Inc., No. 20-cv-00806-EMC, 2020 U.S. Dist. LEXIS 188024 (N.D. Cal. Oct. 9, 2020), Judge Chen stayed an action pending SCOTUS’ review of what constitutes an ATDS. All three of the Landis factors weigh in favor of granting Square's motion to stay the proceedings pending the Supreme Court's forthcoming decision in Duguid II. First, and most importantly,… Read More

In Vargas v. Vehicle Sols. Corp., No. 8:19-cv-1109-T-60AAS, 2020 U.S. Dist. LEXIS 141526 (M.D. Fla. Aug. 7, 2020), Judge Barber found  standing under the TCPA. The facts were as follows: The son of Plaintiff Yajairis Vagas incurred a debt to Defendant Vehicle Solutions Corp. ("VSC") to purchase a car. Because her son worked for Plaintiff's company, Plaintiff made payments on… Read More

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… Read More

In Shuckett v. DialAmerica Mktg., No. 17cv2073-LAB (KSC), 2019 U.S. Dist. LEXIS 127049, at *6 (S.D. Cal. July 29, 2019), Judge Burns dismissed a TCPA plaintiff's claim for lack of standing because the TCPA Plaintiff was not aware of the violative call at the time that it was made. Although the Court previously determined that Shuckett's missed call was a… Read More

In Melito v. Eperian Mktg. Sols., Nos. 17-3277-cv (L), 17-3279-cv (Con), 2019 U.S. App. LEXIS 12945, at *16-20 (2d Cir. Apr. 30, 2019), the Court of Appeals for the Second Circuit followed the 9th Circuit's decision in Van Patten and held that the District Court had jurisdiction to address a class action because the class representative had Article III standing under Spokeo. Experian contends… Read More

In Frank v. Gaos, the SCOTUS today placed further standing impediments to privacy and other purely statutory/no damages class actions, finding, following objections to the class action settlement, that the case should be remanded to determine standing under Spokeo.  The background facts were as follows: Three named plaintiffs brought class action claims against Google for alleged violations of the Stored Communications Act.… Read More

In Blanchard v. Fluent, LLC.,  2018 WL 4373099, at *2–3 (N.D.Cal., 2018), Judge Chesney remanded a case to state court, referring to TCPA precedent. Where, as here, a plaintiff brings a claim under a statute prohibiting the making of false or misleading commercial speech, courts have found the plaintiff, to have standing, must allege an injury caused by such speech.… Read More

In Sharp v. Ally Financial, Inc., 2018 WL 4300018, at *18 (W.D.N.Y., 2018), Judge Wolford found that a TCPA claim survived the Plaintiff's death. Accordingly, the Court declines to follow the rationale and the conclusion set forth in Hannabury to the extent discussed above, and holds that a private claim brought pursuant to § 227(b)(3) and § 227(c)(5) of the… Read More

In Dominguez v. Yahoo!, Inc., -- F.3d ---- (3rd Cir. 2018), the Court of Appeals for the Third Circuit found that Yahoo! did not use an ATDS to send text messages, as the Court of Appeals interpreted the ACA Int’l decision. The decision in ACA International has narrowed the scope of this appeal.16 In light of the D.C. Circuit’s holding, we… Read More

In Romero v. Department Stores National Bank, 2018 WL 1079728, at *1 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA plaintiff had Spokeo standing. The district court erred in concluding that Romero lacked standing under Article III to bring a TCPA claim. The district court did not have the benefit of Van… Read More

In Etter v. Allstate Insurance Company, 2017 WL 6594069, at *4–5 (N.D.Cal., 2017), Judge Alsup denied certification of one TCPA blast-fax case due to lack of class representative's standing, but granted certification of a second class.  As to the standing issue, Judge Alsup found that: Etter cites various decisions for the proposition that “awareness” of an offending transmission is unnecessary to establish… Read More

In Selby v. Ocwen Loan Servicing, LLC, 2017 WL 5495095, at *3 (S.D.Cal., 2017), Judge Bencivengo granted a motion to dismiss in a TCPA case based on lack of standing. The Ninth Circuit's decisions since Romero do not require a different outcome. Plaintiff relies extensively on the Ninth Circuit's recent opinion in Van Patten v. Vertical Fitness Group, LLC, 847… Read More

In Greenley v. Laborers' International Union of North America, Defendant, and United States of America, Intervenor., 2017 WL 4180159, at *1 (D.Minn., 2017), Judge Wright found that a TCPA claim brought against a Union survived a Motion to Dismiss and constitutional challenge.  The facts were as follows: Greenley's amended complaint alleges that during a sixteen-month period from November 14, 2014, through March… Read More

In Franklin v. DePaul University, No. 16 C 8612, 2017 WL 3219253 (N.D. Ill. July 28, 2017), Judge Lee allowed a TCPA text message claim to proceed past the pleading stage. DePaul nevertheless asks the Court to ignore Franklin's allegation that he never gave prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a motion to dismiss.”… Read More

In Kalmbach v. National Rifle Association of America, Case No. C17-399-RSM, 2017 WL 3172836 (W.D. Wash. July 26, 2017), Judge Martinez rejected the Romero standing argument premised on the argument that manually dialed and automatically dialed calls are equally annoying. Defendants argue Ms. Kalmbach lacks standing to bring a claim under the WADAD for lack of an injury because “Kalmbach… Read More