Judge Bumb Answers Key Question That No One Asked: TCPA Plaintiff Lacks Standing to Recover on Unanswered Calls
In Watkins v. Wells Fargo Bank, N.A., No. 15-cv-5712 (RMB)(KMW), 2017 U.S. Dist. LEXIS 84503 (D.N.J. June 2, 2017), the defendant challenged a plaintiff’s TCPA claim on MSJ, arguing that the plaintiff could not have revoked consent because its business records did not demonstrate any note to that effect. The Court denied summary judgment to the defendant, finding that a jury might credit the plaintiff’s testimony that he revoked consent despite the absence of any corresponding entry in the defendant’s business records (indeed, the Court held open the possibility that any ensuing TCPA violation may have occurred willfully).
What was surprising about the ruling—and extremely promising for TCPA land defendants—were the Court’s remarks regarding an issue the parties never raised: standing. Specifically, Judge Renee Marie Bumb telegraphed her belief that a plaintiff can only recover for calls that are actually answered following the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which required a showing of “actual harm” where an injury in fact does not necessarily stem from a statutory violation. In particular, she wrote: “Although the parties have not addressed the issue of standing, it appears that Plaintiff may only recover damages for calls that ‘he, and not an answering machine, answered.’” Watkins, at *8 (citing Spokeo and Leyse v. Bank of Am., 2016 U.S. Dist. LEXIS 140351, at *12 (D.N.J. Oct. 11, 2016). Although Judge Bumb went on to conclude that “[t]he Court need not resolve this issue now,” she plainly made her thoughts on the matter known.
Notably, Judge Bumb is not the only judge in the District of New Jersey serving as a thorn in the side of TCPA plaintiffs. Last August, Judge Peter G. Sheridan issued his ruling in Susinno v. Work Out World, Inc., No. 15-cv-5881(PGS)(TJB), 2016 U.S. Dist. LEXIS 113664 (D.N.J. Aug. 1, 2016), dismissing a single-call TCPA case with prejudice for lack of any Article III harm. That ruling is currently on appeal to the Third Circuit.