Ung v. Universal Acceptance Corp.

• Decision Date: 03 August 2016
• Docket Number: Civ. No. 15-127 (RHK/FLN)
• Citation: 198 F.Supp.3d 1036
• Parties: Spencer UNG, Plaintiff, v. UNIVERSAL ACCEPTANCE CORPORATION, Defendant.
• Court: U.S. District Court — District of Minnesota

198 F.Supp.3d 1036

Spencer UNG, Plaintiff,

v.UNIVERSAL ACCEPTANCE CORPORATION, Defendant.

Civ. No. 15-127 (RHK/FLN)

United States District Court, D. Minnesota.

Signed August 3, 2016

Keith J Keogh, Michael S. Hilicki, Keogh Law, Ltd., Chicago, IL, Patrick J. Helwig, Peter F. Barry, Barry & Helwig, LLC, Minneapolis, MN, for Plaintiff.

David L. Hartsell, Sarah A. Zielinski, Mcguirewoods LLP, Chicago, IL, Patrick C. Summers, Dewitt, MacKall, Crounse & Moore, S.C., Minneapolis, MN, for Defendant.

ORDER

RICHARD H. KYLE, United States District Judge

In this action, Plaintiff Spencer Ung alleges that Defendant Universal Acceptance Corporation ("Universal") made unauthorized calls to his cell phone, in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq. Previously, the Court denied Universal's Motion to Dismiss, concluding that a settlement offer by Universal in March 2016 had not mooted the case. Universal now moves again for dismissal, this time arguing Ung lacks standing based on the Supreme Court's recent decision in Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). For the reasons that follow, the Court will deny Universal's Motion.

The Complaint alleges that beginning in June 2014, Universal repeatedly called Ung's cell phone in an attempt to reach an individual named Joseph Holly, "for whom[ ] Mr. Ung was apparently listed as a credit reference." (Compl. ¶ 16.) Ung had no prior relationship with Universal and had never consented to being contacted on his cell phone by the company. (Id.¶ 15.)

He repeatedly told Universal to stop calling, but the calls continued unabated, including from an automated telephone dialing system. He eventually sued, alleging that Universal had violated the TCPA by calling his cell phone using an autodialer without his consent; he purported to seek relief for himself and a class of similarly situated individuals.

Universal now argues that Ung lacks standing to bring his claims in light of Spokeo. There, the plaintiff alleged the defendant had violated the Fair Credit Reporting Act by disseminating false information about his marital status, age, income, and other demographics. The District Court dismissed the action because the plaintiff had made only sparse allegations of harm resulting from the dissemination and, hence, had not adequately established standing. The Ninth Circuit reversed, but on appeal the Supreme Court reversed and remanded, concluding the Court of Appeals had undertaken an incomplete standing analysis. The high Court noted that Article III standing requires an "injury in fact," meaning the "invasion of a legally protected interest" that is both "concrete and particularized." Id. at 1548. The Ninth Circuit had focused on whether the harm alleged by the plaintiff was particularized, that is, whether it affected the plaintiff "in a personal and individual way." Id. But it had overlooked whether the plaintiff also had alleged a "concrete" injury—a "real" injury that "actually exist[ed]." Id. Because the Court of Appeals had not considered this second step in the analysis, the case was remanded for a determination whether the plaintiff had suffered such an injury; the high Court made no determination whether the plaintiff had in fact suffered a concrete injury sufficient to confer standing.¹

Although Spokeo did not determine whether the plaintiff had suffered an injury sufficient to confer standing to sue, Universal nevertheless cites it to argue Ung has not suffered a sufficient concrete injury here. Cases, however, have repeatedly recognized that the receipt of unwanted phone calls constitutes a concrete injury sufficient to create standing under the TCPA. See, e.g., Caudill v. Wells Fargo Home Mtg., Inc., Civ. No. 5:16–066, 2016 WL 3820195, at *2 (E.D.Ky. July 11, 2016) (noting that calls caused harms "such as the invasion of privacy [that] have traditionally been regarded as providing a basis for a lawsuit in the United States"); Rogers v. Capital One Bank (USA), N.A., 190 F.Supp.3d 1144, 1147, No. 1:15–CV–4016, 2016 WL 3162592, at *2 (N.D.Ga. June 7, 2016) (rejecting argument plaintiffs lacked standing under TCPA where they alleged "the Defendant made unwanted phone calls to their cell numbers"); Mey v. Got Warranty, Inc., 193 F.Supp.3d 641, 648–49, 2016 WL 3645195, at *7 (N.D.W.Va.2016) (collecting cases); see also, e.g., Cour v. Life360, Inc., Civ. No. 16–805, 2016 WL 4039279, at *2 (N.D.Cal. July 28, 2016) (receipt of single unauthorized text message sufficient to create standing under TCPA). Indeed, Universal correctly notes that both Congress (in passing the TCPA) and the Federal Communications Commission (when interpreting the statute) have recognized the harms inherent in the receipt of automated calls, in particular the invasion of privacy and the intrusion upon seclusion. (See Def. Mem. at 8-10.) And Universal does not seriously quibble with the notion that receipt of autodialed calls constitutes an invasion of privacy sufficient to create standing.

Rather, Universal's argument is more nuanced. It contends the TCPA is intended only to remedy calls placed by an "automatic telephone dialing system," 47 U.S.C. § 227(b)(1)(A)(iii), but the FCC has interpreted that term to include equipment with the capacity to place automated calls. In other words, according to the FCC, a defendant may transgress the statute by manually dialing an unwanted phone call, as long as the system used to make the call has the capacity to autodial. Universal claims that is precisely what happened here: it "called Plaintiff twelve times [and] the evidence shows[ ] these calls were made by a live person who manually placed the calls to Plaintiff's phone number." (Def. Mem. at 2.) As a result, Universal argues that Ung can demonstrate, at most, only the type of "bare procedural violation" insufficient to create standing under Spokeo, since the prevention of manually dialed calls was not the TCPA's aim.

Ung hotly contests whether the calls he received from Universal were manually dialed rather than autodialed. But the Court need not wade into that dispute at this juncture, because assuming arguendo the calls were placed manually, Ung still has standing to sue. This is because Universal's argument conflates the means through which it (allegedly) violated the TCPA with the harm resulting from that alleged violation.

An example best makes this clear. Assume that a plaintiff sued after receiving only one unwanted phone call from the defendant. In that instance, how would the plaintiff's harm differ if he had received a manually dialed call placed on equipment capable of autodialing versus a call that was in fact autodialed? In either case, the plaintiff received only one call, and hence the alleged invasion of his privacy would have been precisely the same. While the injury in such a situation might well be minimal, it is enough to clear Article III's low bar for a concrete injury. See, e.g., Palm Beach Golf Ctr. – Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir.2015) (receipt of one junk fax sufficient to confer standing); Rogers, ––– F.Supp.3d at ––––, 2016 WL 3162592, at *1 (plaintiff had standing after receiving two phone calls); Cour, 2016 WL 4039279, at *2 (single unsolicited text message sufficient); Meyer v. Bebe Stores, Inc., Civ. No. 14–267, 2015 WL 431148, at *1–2 (N.D.Cal. Feb. 2, 2015) (same); see also Sierra Club v. U.S. Army Corps of Eng'rs, 645 F.3d 978, 988 (8th Cir.2011) (although a concrete injury must actually exist, it need not "be large[;] an identifiable trifle will suffice") (citation omitted); Coalition for Env't v. Volpe, 504 F.2d 156, 168 (8th Cir.1974) (when evaluating...