Advertising Law Blog

The case of Spokeo v. Robins, decided on February 4, 2014 by the Ninth Circuit Court of Appeals, is not a Telephone Consumer Protection Act (TCPA) case, but it could have a lasting effect on the future of TCPA litigation. Earlier this week, the United States Supreme Court agreed to hear an appeal of the Ninth Circuit’s ruling. 

Spokeo involves claims under the Fair Credit Reporting Act (FCRA). Thomas Robins sued Spokeo under the FCRA for publishing inaccurate information about him on the Spokeo website. However, Robins could not show any actual harm suffered as a result of the misinformation. As many TCPA plaintiffs do, Robins sued for statutory damages only. (Like the TCPA's $500-per-violation provision, the FCRA provides an award of at least $100 per violation to a successful plaintiff).

Spokeo argued that Article III of the United States Constitution bars a plaintiff from maintaining a claim if he or she has not suffered any actual damages.  Robins responded that the statutory award of $100 per violation showed that Congress did not intend to require proof of actual injury.

The district court in the Central District of California sided with Spokeo and dismissed the case. Robins appealed to the Ninth Circuit, and prevailed.

In reversing the district court, the Ninth Circuit held that, “When, as here, the statutory cause of action does not require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages. Of course, the Constitution limits the power of Congress to confer standing... This Constitutional limit, however, does not prohibit Congress from ‘elevating to the status of legally cognizable injuries concrete de facto injuries that were previously inadequate in law.’”

By agreeing to hear Spokeo’s appeal, the Supreme Court cast doubt on the continuing validity not only of the Ninth Circuit’s ruling, but indirectly on a large number of TCPA cases. In nearly every TCPA case (except for possibly junk fax cases, where printer ink and toner are wasted), the recipient will have a difficult time showing an injury-in-fact from an unwanted telephone call or text message, and therefore only the statutory award is sought

The Supreme Court is scheduled to hear the appeal in October 2015, with a decision likely coming in 2016. The precise issue for the appeal is “[w]hether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” This blog will continue to report on Spokeo v. Robins.