Compass Bank Can’t Use Spokeo To Ditch TCPA Row

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Law360, New York (November 6, 2017, 10:45 PM EST) — An Alabama federal judge on Friday refused to toss a putative class action accusing Compass Bank of violating the Telephone Consumer Protection Act, finding that the placement of two allegedly unsolicited autodialed calls resulted in harm that was concrete enough to meet the standing bar established by the U.S. Supreme Court’s Spokeo decision.

In a 37-page decision, U.S. District Judge Virginia Emerson Hopkins rejected Compass Bank’s argument that plaintiff Robert Hossfeld had failed to allege a “pattern of invasive, unsolicited calling” that it claimed was necessary to establish a concrete harm under the high court’s May 2016 ruling in Spokeo v. Robins. In the Spokeo case, the justices held that the plaintiffs cannot rely on mere statutory violations to establish Article III standing, but instead must assert a tangible or intangible concrete harm to meet this threshold.

“The parties have provided the Court with numerous cases to consider as persuasive authority when deciding this post-Spokeo issue under the TCPA,” the judge wrote. “Ultimately, the Court rejects those cases that, utilizing a de minimis approach to evaluating concreteness, have found that a TCPA claim lacks that component when a plaintiff is complaining about only one or two unsolicited communications via a telephone call, voicemail message, text message, or facsimile.”

Instead, Judge Hopkins elected to adopt the reasoning of the Third Circuit’s July decision in Susinno v. Work Out World Inc., which revived a putative class action accusing the gym of making prerecorded sales calls in violation of the TCPA after finding that the lead plaintiff had alleged a sufficiently concrete injury stemming from a single solicitation to her cellphone.

While it has historically been that individuals’ privacy is invaded when they receive calls that “are repeated with such persistence and frequency as to amount to … hounding,” Congress in enacting the TCPA elevated what had previously been an inadequate harm of a single unwanted communication to concrete status by declaring that unsolicited telemarketing phone calls or text messages in general, by their nature, invade the privacy and disturb the solitude of their recipients, Judge Hopkins noted in citing the Third Circuit’s reasoning in Susinno.

“Guided by Susinno, which comparably involved one unsolicited call to the plaintiff’s cell phone and a related voicemail message, this Court similarly holds that the first unauthorized communication experience by Mr. Hossfeld — consisting of the call from Compass to his cellphone number and the subsequent telephone conversation with a representative — is not merely a procedural or technical violation of the TCPA,” Judge Hopkins wrote. “Instead, the contact falls squarely within the scope of what the TCPA makes unlawful … — a non-emergency call made to Mr. Hossfeld’s cell phone number without his permission using an automatic telephone dialing system.”

Judge Hopkins additionally found that Hossfeld’s alleged injuries met the other prong for Article III standing, particularity.

Hossfeld claimed in his first amended complaint that the bank, which is a subsidiary of BBVA Compass Bancshares Inc., and its marketing partner MSR Group LLC had placed two unsolicited survey calls to his cellphone within a six-month period in 2016. The plaintiff alleged that the calls were a nuisance which briefly deprived him of the use of his phone, invaded his personal privacy, wasted his time and drained his battery life.

Citing a pair of recent Eleventh Circuit decisions that found that plaintiffs had met the particularity requirement by alleging that an unsolicited fax had tied up their fax machines, Judge Hopkins concluded that Hossfeld had in his case against the bank “undoubtedly cleared the particularity hurdle and asserted a personal connection to the harm claimed that is sufficient to establish this prong of the standing requirement.”

While Compass Bank may not have intended for Hossfeld to personally receive these survey calls, liability for using an autodialing system under the TCPA “does not provide a statutory exception if someone other than the defendant’s intended recipient answers or receives the call,” and none of the standing cases cited by Compass “evaluates particularity under the TCPA through the lens of what a defendant did or did not intend regarding the actual recipient of any unsolicited calls,” the judge added.

Compass Bank also fell short on its argument that Hossfeld had failed to show that his alleged injuries were traceable to the defendants’ conduct, with Judge Hopkins concluding that “the link between Mr. Hossfeld’s intrusion injury and Compass’s conduct is neither speculative, nor attenuated, nor indirect.”

“Instead, Compass’s use of the autodialer to call Mr. Hossfeld’s cell phone number is the direct source that led to his claimed injury,” the judge concluded.

Hossfeld is represented by Alexander H. Burke and Daniel J. Marovitch of Burke Law Offices LLC, Scott D. Owens, and Gregory S. Graham.

Compass Bank is represented by Gregory C. Cook and Jonathan P. Hoffmann of Balch & Bingham LLP. MSR Group is represented by Sharon D. Stuart and Jonathan M. Hooks of Christian & Small LLP and Chad Fuller and Virginia Bell Flynn of Troutman Sanders LLP.

The case is Hossfeld v. Compass Bank et al., case number 2:16-cv-02017, in the U.S. District Court for the Northern District of Alabama.