Post-Spokeo: The Impact of Article III Standing on Consumer Finance Litigation

• Published in: The Business Lawyer 2018-03, Vol.73 (2), p.565-574
• Main Authors: Christakis, Anna-Katrina S., Pilgrim, Jeffrey D., Majewski, Jennifer L.
• Format: Article
• Language: English
• Subjects: Commercial law; Consumer credit; Consumer protection; Credit reports; Criminal records; Disclosure; Fair Credit Reporting Act 1970-US; Fair Debt Collection Practices Act 1977-US; Federal court decisions; Federal jurisdiction; Laws, regulations and rules; Privacy; Standing (Law); State court decisions; Survey—Consumer Financial Services; Violations
• ISSN: 0007-6899; 2164-1838

Spokeo creates difficult problems in the field of consumer finance law, where many federal statutes combine technical disclosure and procedural requirements with substantive rights and obligations that may result in claims for statutory damages, but often resulting in no actual injury. Since it was decided, Spokeo has been cited in more than one thousand cases.10 Lower courts evaluating standing to sue post-Spokeo have come to widely varying conclusions about what it means to suffer a concrete injury in the context of a pure statutory violation. "28 The court noted that "a mere wave of the Congressional hand is not enough to render an abstract injury concrete" and dismissed without prejudice.29 Telephone Consumer Protection Act The TCPA prohibits the use of automated telephone dialing technology and prerecorded messages without the prior express consent of, or an established business relationship with, the called party.30 The Ninth Circuit held, in Van Patten v. Vertical Fitness Group, LLC,31 that, unlike a violation of the FCRA that may not cause actual harm or present any material risk of harm, "[u]nsolicited telemarketing phone calls or text messages, by their very nature, invade the privacy and disturb the solitude of their recipients. In Romero v. Department Stores National Bank,37 the court held that, while the act of calling a person's cell phone could satisfy the particularity requirement, it did not automatically satisfy the concreteness requirement because it was possible that the plaintiffs phone was turned off or did not ring, that she did not hear the phone ring, or that, for whatever other reason, she was unaware that the call occurred.38 The court held that a plaintiff therefore cannot have suffered an injury-in-fact as a result of a phone call she did not know was made.39 In addition, even for the calls that the plaintiffs heard ring or actually answered, the court found that they did not offer any evidence of a concrete injury caused by the use of an autodialer as opposed to a manually dialed call.40 In Ewing v. SQM US, Inc.,41 the same judge held that the defendants' use of an autodialer did not cause plaintiff to incur charges that he would not have incurred if the defendants had manually dialed his number; thus, the plaintiff did "not suffer an injury in fact traceable to Defendants' violation of the TCPA," so that the plaintiff lacked standing.42 The Romero and Ewing decisions have been widely criticized, with one court stating that, u