Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: Violation of TCPA substantive rights constitutes concrete injury, (Aug 25, 2016)

By Greg Hammond, J.D.

Allegations that various companies violated section 227 of the Telephone Consumer Protection Act (TCPA)—by using an autodialer and an artificial or prerecorded voice to call cellular and landline phones—were sufficient to state a concrete injury, as required by the Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In denying the companies’ motion for summary judgment, the federal district court in Chicago concluded that section 227 of the TCPA established substantive, not procedural, rights to be free from telemarketing calls consumers have not consented to receive, and that a violation of this substantive right constituted a concrete injury (Aranda v. Caribbean Cruise Line, Inc., August 23, 2016, Kennelly, M.).

A number of consumers filed a class action suit against Caribbean Cruise Line, Inc., Vacation Ownership Marketing Tours, Inc., The Berkley Group, Inc., and Economic Strategy Group (ESG) and its affiliated companies, alleging violations of the TCPA. The consumers claimed that ESG placed millions of calls to consumers who did not consent to receive them. In light of the Supreme Court’s decision in Spokeo, the defendants renewed their motion for summary judgment and moved to decertify the two classes.

Concrete injury. The defendants argued that Spokeo clarified that an injury must be both "concrete" and "particularized" to satisfy Article III and that the bare violation of a consumer protection statute did not amount to a "concrete" injury. The court, however, determined that—unlike the statute at issue in Spokeo—the TCPA section did not require the adoption of procedures to decrease congressionally-identified risks. Instead, section 227 of the TCPA prohibits making certain kinds of telephonic contact with consumers without first obtaining their consent, according to the court. Further, section 227 directly forbids activities that by their nature infringe the privacy-related interests that Congress sought to protect by enacting the TCPA. The court consequently concluded that section 227 established substantive, not procedural, rights to be free from telemarketing calls consumers have not consented to receive. Violation of this substantive right was sufficient to constitute a concrete, de facto injury, the court concluded.

Certification. In seeking to decertify the class, the defendants argued that whether and to what extent each plaintiff was injured was a question that must be answered individually for each plaintiff. The argument failed for two reasons, the court decided, because: (1) all of the plaintiffs in the two certified classes alleged a common, concrete injury, demonstrating that the classes met the commonality requirement imposed by Federal Rule of Civil Procedure 23(a); and (2) given the plaintiffs’ choice to seek only statutory damages, common issues very clearly continued to predominate over individual ones.

The case is No. 12 C 4069.

Attorneys: Scott R. Rauscher (Loevy & Loevy) for Gerardo Aranda. Rebecca F. Bratter (Greenspoon Marder, P.A.) and Timothy A. Hudson (Tabet DiVito & Rothstein) for Caribbean Cruise Line, Inc. David Luther Hartsell (McGuireWoods LLP) and Vincent J. Connelly (Mayer Brown LLP) for The Berkley Group, Inc. Jeffrey Backman (Greenspoon Marder, P.A.) for Vacation Ownership Marketing Tours, Inc.

Companies: Caribbean Cruise Line, Inc.; The Berkley Group, Inc.; Vacation Ownership Marketing Tours, Inc.

Cases: Privacy IllinoisNews