A Setback to Businesses: Courts in the Eleventh Circuit in a Post-Spokeo World
When the Supreme Court issued its ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016), earlier this year, it was received by compliance professionals with mixed reactions. Many were thrilled with the Supreme Court’s ruling which seemingly provided a defense to purely statutory-damages-based consumer lawsuits. Others were cautious not to read too much into the Supreme Court’s decision. Based on recent rulings out of courts in the Eleventh Circuit, it appears the skeptics may have been right.
In Spokeo, the Supreme Court vacated and remanded the Ninth Circuit’s opinion and held in the context of a Fair Credit Reporting Act (FCRA) claim that the injury-in-fact requirement for standing required a concrete and particularized injury. Id. The Supreme Court explained that “[i]njury in fact is a constitutional requirement, and it is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Id. at 1547-48. (internal quotations omitted). The Court noted that the allegation of a statutory right concerned particularization and not concreteness. Id. at 1548. While a concrete injury need not be tangible, the Court further noted that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. As a result, the allegation of a bare procedural violation without any concrete harm was insufficient to demonstrate Article III standing. See id. (further noting that not all inaccuracies under the FCRA present any material risk of harm)
The Supreme Court’s remand gave hope to those who seek to defend against consumer litigation premised on statutory violations. For example, both the Telephone Consumer Protection Act (TCPA) and Fair Debt Collection Practices Act (FDCPA) provide for statutory remedies irrespective of actual damages. If Spokeo remanded an FCRA statutory claim, could analogous arguments gain traction under the TCPA and FDCPA and protect businesses from technical violation cases?
Unfortunately, in at least the Eleventh Circuit, this hope is nothing more than a pipe dream. With respect to the FDCPA, earlier this month, in an unpublished opinion, the Eleventh Circuit distinguished Spokeo in the context of an FDCPA improper disclosure case and permitted a statutory damages claim to proceed despite the lack of any economic or physical damages. See Church v. Accretive Health, Inc., 2016 U.S. App. LEXIS 12414 (11th Cir. July 6, 2016). Specifically, the Eleventh Circuit noted that the Supreme Court left open the possibility that a violation of a procedural right could be an injury-in-fact in certain circumstances. Id. at *6. The Court in Church found that Congress created a right to receive the required FDCPA disclosures and a new injury when a debtor does not receive such disclosures. Id. at *10. Not receiving the mandatory disclosures was deemed to be a “real” and “concrete” injury which sufficiently satisfied the injury-in-fact requirement. Id. at *11.
Because Church is an unpublished opinion, it is not binding precedent. See 11th Cir. R. 36-2. Despite its status as an unpublished opinion, at least one Court has already cited and relied upon Church. In Dickens v. Gc Servs., the plaintiff claimed that the defendant omitted material language required by the FDCPA. 2016 U.S. Dist. LEXIS 94621 (M.D. Fl. July 20, 2016). The defendant moved to dismiss for lack subject matter jurisdiction arguing, amongst other things, that Spokeo confirms that the plaintiff did not suffer an “injury-in-fact.” The Middle District of Florida denied the motion to dismiss, stating that the defendant grossly misread Spokeo. Id. at *3. More importantly, the Court cited to Church and stated that the “Court is convinced that the Eleventh Circuit's Church opinion is a more nuanced application of Spokeo and the principles underlying it” and that “[i]n the face of that persuasive authority, the Court will not read Spokeo as denying Dickens standing here.” Id. at *5. Given that the courts in Church and Dickens each characterized a violation of the FDCPA as a cognizable and concrete injury, it does not appear that businesses will be able to rely on Spokeo in order to defend against technical FDCPA violations which are devoid of any actual damages.
The TCPA outlook on this front appears equally grim. “[T]he Eleventh Circuit has held that Congress intended to create a concrete injury where the statute was violated, meaning so long as the plaintiff has been affected personally by the conduct that violates the statute, standing exists.” Rogers v. Capital One Bank (USA), N.A., 2016 U.S. Dist. LEXIS 73605, *4 (N.D. Ga. June 3, 2016)(citing Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015)). Because Palm Beach Golf was issued prior to Spokeo, one could argue that it is overruled to the extent it is inconsistent with Spokeo. However, even though Church was an FDCPA case, the fact that the Eleventh Circuit limited Spokeo to its narrow facts and found a concrete injury-in-fact on a purely statutory-based claim seemingly signals that the Eleventh Circuit would consider Palm Beach Golf to be good law. Based on these recent cases, it is reasonable to conclude that the Eleventh Circuit would hold that the TCPA created a concrete injury and, as a result, regardless of any actual damages, a plaintiff would have Article III standing.
Recently, a court outside the Eleventh Circuit held that the plaintiff’s TCPA claim alleged nothing more than a bare violation of the TCPA without any concrete harm and thus required dismissal. See Sartin v. EKF Diagnostics, Inc., 2016 U.S. Dist. LEXIS 86777 (E.D. La. July 5, 2016). While such a ruling is positive news for businesses defending consumer claims, it is not binding on the Eleventh Circuit. In fact, in all likelihood as noted above, the Eleventh Circuit would reject Sartin and adhere to Palm Beach Golf.
Therefore, it seems the best hope for businesses in the Eleventh Circuit would be a circuit split that requires the Supreme Court to answer the question whether a statutory violation without any actual damages is sufficient to confer standing or whether Spokeo is limited to its facts. For now, courts in the Eleventh Circuit appear to lean towards the latter.