Ninth Circuit Lowers the Axe on Oft-Criticized TCPA Standing Opinion

The Ninth Circuit Court of Appeal overruled the district court’s dismissal of a TCPA case for lack of Article III standing yesterday in Elisa Romero v. Department Stores National Bank, No. 16-56265, 2018 WL 1079728 (9th Cir. Feb. 28, 2017). The district court ruling in Romero was an oft-cited and oft-criticized opinion that held, in essence, that the harm caused by phone calls must be attributable to the use of an ATDS to give rise to Article III standing. It also suggested that debt collection phone calls don’t really cause harm at all.

The district court opinion in Romero was handed down by Judge Cathy Ann Bencivengo, who went on to expand her own Romero holding in Selby v. Ocwen Loan Servicing, Case No.: 3:17-CV-973-CAB-BLM, 2017 U.S. Dist. LEXIS 189995 (S.D. Cal. Nov. 16, 2017). There she suggested that it was impossible for debt collection calls to cause the sort of harm Congress intended to prevent when enacting the TCPA because the TCPA was only designed to prevent telemarketing calls. See my thoughts here.

In overturning Judge Bencivengo’s Romero opinion, the Ninth Circuit panel rejected the tenets expressed in Judge Bencivengo’s opinions in both Romero and Selby. Most basically, the Court read Van Patten broadly for the proposition that “a violation of the TCPA is a concrete, de facto injury.” Romero at *1, citing Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017). The Ninth Circuit also rejected the premise that the harm from calls needed to link back to the use of an ATDS; rather, standing requires only that the harm be attributable to the Defendant’s conduct. Ibid.

Perhaps most damaging to the hopes and dreams of TCPA junkies (like me), Romero directly rejects Selby’s position that Van Patten is limited to telemarketing calls. This line of analysis had broad promise and application both in the realm of Article III standing and also respecting the TCPA’s infringement on free speech. But Romero stopped that charging bull with a bullet between the eyes: “The TCPA is not limited to telemarketing calls; Congress recognized unsolicited contact as a concrete harm regardless of caller or content, and this harm is similar in kind to harm that has traditionally been redressable by courts.” Romero at *2.

That last piece of Romero seems subject to debate. The Supreme Court addressed the issue of Congressional intent in Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) and noted that the TCPA was designed to prevent harm from telemarketing calls. This is consistent with the Ninth Circuit’s own ruling of Van Patten, in which the Court held “Congress sought to protect consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements.” Van Patten at 1043 (emphasis added). But Romero does not spend much time analyzing the panel’s about face on the issue—it concludes rather roughly that “[a] plaintiff alleging a violation under the TCPA ‘need not allege any additional harm beyond the one Congress has identified'” without ever demonstrating that Congress identified debt collection calls as causing harm to begin with.

Eric Troutman

Eric Troutman

Eric is one of the country’s prominent Telephone Consumer Protection Act (TCPA) defense attorneys, having served as lead defense counsel on over 30 nationwide TCPA class actions and having handled hundreds of individual TCPA cases. He also “wrote the book” on TCPA defense, having co-authored the nation’s first comprehensive practice guide on the subject. In addition, he has helped spearhead the banking industry’s push for TCPA clarity before the Federal Communications Commission and has assisted on numerous appeals addressing hot-button TCPA issues.

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