Antitrust Law Daily Wrap Up, PRIVACY—N.D.W.Va.: Invasion of privacy caused by robocalls a concrete injury, (Jul 6, 2016)

By Jody Coultas, J.D.

Got Warranty, Inc. was denied dismissal of Telephone Consumer Protection Act (TCPA) claims on the basis of standing by the federal district court in Wheeling, West Virginia. The court found that the cell phone user suffered a concrete injury-in-fact based on the intangible injuries of (1) an invasion of privacy, (2) intrusion upon and occupation of the capacity of the consumer’s cell phone, and (3) wasting the consumer’s time or causing the risk of personal injury due to interruption and distraction (Mey v. Got Warranty, Inc., June 30, 2016, Bailey, J.).

Diana Mey alleged that Got Warranty violated the TCPA by calling her cellular telephone and to a number registered on the National Do Not Call Registry without consent. Got Warranty also allegedly used technology capable of generating hundreds of thousands of telemarketing calls per day to make the calls.

In Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015), the Supreme Court confirmed the long-established principle that injury-in-fact is one of three elements required for standing. An injury in fact is established by evidence of an invasion of a legally protected interest that is concrete and particularized and actual or imminent. The court ordered Mey and Got Warranty to file briefs explaining how Spokeo affected their respective positions and opining as to how the court should proceed.

Unwanted phone calls cause direct and concrete harm in the form of depleted minutes that the consumer paid for or other charges for calls, according to the court. Also, automatic telephone dialing system calls deplete a cell phone’s battery and the cost of electricity to recharge the phone is a tangible harm.

Such calls also cause intangible injuries, the court noted. One type of intangible harm that unlawful calls cause is the invasion of privacy. Spokeo states that to establish that an intangible injury is concrete, a plaintiff may show that it "has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Common law recognizes that harm caused by invasion of privacy is actionable and the right to privacy is protected under the Constitution. Even if invasion of privacy was not recognized as redressable through a common law tort claim, it would meet the requirement of concreteness because Congress clearly identified it as a legally cognizable harm when adopting the TCPA.

A second type of intangible harm caused by the unwanted calls is an intrusion upon and occupation of the capacity of the cell phone. Temporary electronic intrusion upon another person’s computerized electronic equipment constitutes trespass to chattels. Even if the consumer does not answer the call or hear the ring tone, the mere invasion of the consumer’s electronic device can be considered a trespass to chattels.

The illegal calls also required Mey to tend to them and waste her time, according to the court. Wasting the recipient’s time is a concrete injury that satisfies the standing requirement in TCPA cases. Congress repeatedly emphasized the nuisance aspect of robocalls and sought to remedy the interruptions that they cause and the time they cause consumers to waste.

The stay issued pending the resolution of Spokeo was lifted. The court noted that some would argue the matter was not technically resolved as Spokeo was remanded based on the Ninth Circuit’s incomplete standing analysis. However, the court expressed its position that the matter was resolved.

The case is No. 5:15-CV-101.

Attorneys: Anthony Paronich (Broderick & Paronich, P.C) for Diana Mey. Brandon J. Kupec (Kupec & Associates, PLLC) for Got Warranty, Inc. Christopher A. Lauderman (Steptoe & Johnson, PLLC) for N.C.W.C., Inc. and Palmer Administrative Services, Inc.

Companies: Got Warranty, Inc.

Cases: Privacy WestVirginiaNews