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By Jimmy H. Koo
Sept. 2 — Citibank N.A. couldn't shake off a class complaint alleging the bank misdirected debt collection robocalls because the plaintiff's annoyance and wasted time are harmful ( Juarez v. Citibank, N.A., 2016 BL 287024, N.D. Cal., No. Case No. 16-cv-01984-WHO, 9/1/16 ).
Judge William H. Orrick of the U.S. District Court for the Northern District of California ruled Sept. 1 that plaintiff Fortunato Juarez made sufficient allegations of harm from 42 robocalls from Citibank to allow the Telephone Consumer Protection Act litigation to continue.
Juarez said the calls caused him aggravation, were a nuisance and invaded his privacy, as well as the privacy of other potential class members who received similar calls. That assertion is sufficient to support a TCPA claim consistent with the U.S. Supreme Court's test set forth in Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016), the district court said.
Although the ruling comes in a relatively low-stakes case, it demonstrates the uncertain nature of how courts determine whether injuries are sufficient to allow TCPA cases to continue past the early stages of litigation. Federal trial courts don't necessarily see eye-to-eye on the issue even after Spokeo. Small differences in how complaints describe alleged harm have big consequences for whether plaintiffs are allowed to continue their lawsuits.
In Spokeo, the Supreme Court held that a plaintiff must show that the injury was both “concrete and particularized” and can't rely on a procedural violation to allege injury in fact (15 PVLR 1062, 5/23/16).
Several courts have addressed whether receiving unwanted and annoying phone calls in violation of the TCPA, 47 U.S.C. § 227, is sufficient to establish standing under Spokeo, but these courts haven't reached a consensus. A federal district court in Illinois recently held that the TCPA establishes substantive rights to be free from telemarketing calls and the bare violation of the statute is enough to establish federal court standing (15 PVLR 1772, 9/5/16).
Orrick said that plaintiff Juarez can't establish standing based on “a bare violation of the TCPA” and must show that the phone calls caused concrete injury such as lost time, annoyance and frustration. Nonetheless, the court held that Juarez's allegations that he repeatedly received unwanted calls that caused him “aggravation, nuisance and an invasion of privacy” is sufficient for standing.
Considering these different interpretations, companies need to be aware that depending on the court, a mere statutory violation of the TCPA may be sufficient for consumers to have standing to sue them.
According to the class complaint, during 12 days in March, Citibank called Juarez at least 42 times on his mobile phone, at least three times a day, using an autodialer and/or a prerecorded or artificial voice to collect consumer debt. Juarez repeatedly requested that the bank stop calling him and said that he wasn't the individual the bank was trying to contact.
However, the phone calls continued, according to Juarez.
Juarez sued Citibank, alleging violations of the TCPA and California's Rosenthal Fair Debt Collection Practices Act. Citibank moved to dismiss the class action, alleging that Juarez failed to allege a concrete injury to establish standing. The court disagreed with Citibank.
“Although I agree with Citibank that Juarez cannot establish standing based on a bare violation of the TCPA, Juarez has pleaded sufficient facts to show that the unwanted calls he received were an annoyance that caused him to waste time,” Orrick said.
The court held that Juarez has standing to bring an action under the Rosenthal Act because he fits into the classification of a “debtor” under the act—“those who are alleged to have a consumer debt due and owing.” Based on Juarez's allegations, he is a “debtor” and has standing, the court concluded.
Bursor & Fisher PA represented Juarez. Stroock & Stroock & Lavan LLP represented Citibank.
To contact the reporter on this story: Jimmy H. Koo in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Donald G. Aplin at email@example.com
Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/Juarez_v_Citibank_NA_No_16cv01984WHO_2016_BL_287024_ND_Cal_Sept_0.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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