Second Circuit Joins Consensus Holding TCPA Plaintiffs Have Standing Under Spokeo

The Telephone Consumer Protection Act (TCPA) provides people whose cell phones receive unconsented-to, autodialed calls and texts a right to sue. Since the Supreme Court's decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which held that statutory violations unaccompanied by "concrete injuries" do not provide a plaintiff with "standing" to sue in a federal court, the question whether receiving calls and texts that violate the TCPA is a "concrete injury" has arisen in a number of cases. TCPA defendants (and in some cases, objectors to TCPA class-action settlements) have asserted that receiving an unwanted call or text is not a real injury for which Congress can provide a judicial remedy. Today, the U.S. Court of Appeals joined the emerging consensus that, under Spokeo, an unwanted call or text that violates the TCPA inflicts an injury that a plaintiff can sue over in a federal court.

Today's decision in Melito v. American Eagle Outfitters holds that the "nuisance and privacy invasion attendant on spam texts" (as well as calls and faxes) are sufficient to provide the "injury-in-fact" necessary for standing to sue in a federal court. The court looked to the two considerations that the Supreme Court said in Spokeo were critical to determining whether a statutory violation inflicts an injury: "history and the judgment of Congress." As to the first, the court found that the nuisance and privacy invasion inherent in unwanted robocalls and spam texts "were the harms Congress identified when enacting the TCPA." As to the second, these injuries "closely relate to traditional claims, including claims for 'invasions of privacy, intrusion upon seclusion, and nuisance.'" Because receiving unwanted communications "is itself the harm" the statute is aimed at, no more is required for a plaintiff to have standing to sue.

The Second Circuit's decision accords with post-Spokeo holdings of the Ninth and Third Circuits. No federal appellate court has yet held otherwise. It seems likely that TCPA plaintiffs will be largely unaffected by Spokeo, though the issue will continue to be raised and decided in other circuits until it has been laid to rest.