ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
Pending before this Court is the Motion to Dismiss Pursuant to Rule 12(b)(1) or in the Alternative, Motion to Stay Pending Supreme Court Review [Doc. 71], filed February 12, 2016, by defendants N.C.W.C., Inc. and Palmer Administrative Services, Inc. In March of 2016, the Motion had been fully briefed and was then ripe for adjudication. By Order entered March 22, 2016, this Court granted the aspect of the Motion seeking a stay of proceedings pending the Supreme Court’s decision in Robins v. Spokeo, Inc.,
On May 16, 2016, the United States Supreme Court issued its decision in the Spokeo case. By Order entered May 19, 2016, this Court ordered the parties to file briefs explaining how the Supreme Court’s decision affects their respective positions and opining as to how this Court should proceed in the matter. The requested briefs having been received, this Court is
I. BACKGROUND
The plaintiff filed the instant action on August 6, 2015, “to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act.” [Doc. 1 at ¶ 1]. The Complaint alleges that defendant Got Warranty, Inc.
Based on the alleged calls, the plaintiff has brought one count for “[violation of the TCPA’s provisions prohibiting auto-dialer and prerecorded message calls to cell phones,” a second count for “[violation of the TCPA’s Do Not Call Provision,” and a third count for “[ijnjunctive relief to bar future TCPA violations.” [Id. at p. 12],
II. APPLICABLE LAW
Article III Standing & the TCPA
Under the Telephone Consumer Protection Act (“TCPA”), a party is prohibited from making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service[.]” 47 U.S.C. § 227(b)(l)(A)(iii). The TCPA creates a private right of action in which a person may bring “an'action to recover for actual monetary loss-from such a violation, or to receive $500 in damages for each such violation,' whichever is greater.” 47 U.S.C. § 227(b)(3)(B).
Article III, section 2 of the United States Constitution limits the judicial power of federal courts’ to cases and controversies. To qualify as a case or controversy, a plaintiff in federal court must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that'is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, - U.S. -,
III.ANALYSIS
In Spokeo, the Supreme Court addressed the injury-in-fact requirement for Article III standing. Spokeo appears to have broken no new ground. Rather, the Supreme Court confirmed the long-established principle that injury-in-fact is one of three elements required for standing. Id. at 1547. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548. The Supreme Court held that the Ninth Circuit Court of Appeals had addressed the particularity-requirement of injury in'fact—the require
Spokeo confirms that either tangible or intangible injuries can satisfy the requirement of concreteness. Id. at 1549. Where the injury is intangible, Spok-eo summarizes two approaches to meet this requirement. First, courts should consider “whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. Id. As the Court noted, “the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§ 569 (libel), 570 (slander per se) (1938).” Id. at 1549.
Second, Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law ....” Id. (quoting Lujan v. Defenders of Wildlife,
The Court also noted that merely asserting a “bare procedural violation, divorced from any concrete harm,” will not satisfy the concreteness requirement. Id. This observation has little application to claims under the TCPA, since those claims are not based on “bare procedural” rights, but rather on substantive prohibitions of actions directed toward specific consumers. Even for procedural rights, however, a “risk of real harm” can satisfy Article III. Id. The Court stated: “[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id. The Court offered two examples:
• “ ‘[inability to obtain information’ that Congress had decided to make public is a sufficient injury in fact to satisfy Article III ....”
• “[FJailure to obtain information subject to disclosure under the Federal Advisory Committee Act ‘constitutes a sufficiently distinct injury to provide standing to sue’ ....”
Id. at 1549-50.
In Spokeo, the defendant sought a ruling that would have eviscerated causes of action seeking statutory damages. But the Supreme Court did no such thing. Instead, it issued a narrow ruling remanding the case to the Ninth Circuit solely on the basis that it failed to address the extent to which Robins’ injuries were “concrete” as opposed to merely particularized, notwithstanding prior Supreme Court precedent requiring a finding of both. Id. at 1545. The Supreme Court explicitly took no position on whether Robins’ injuries were in fact concrete for standing purposes. Id. at 1550.
Spokeo thus created no new law; it merely remanded the case to allow the Ninth Circuit to conduct the proper analysis. As Justice Alito noted, “[w]e have made it clear time and time again that an injury in fact must be both concrete and particularized.” Id. at 1549 (emphasis in original).
This Court finds that unwanted phone calls cause concrete harm. For consumers with prepaid cell phones or limited-minute plans, unwanted calls cause direct, concrete, monetary injury by depleting limited minutes that the con
■Of more import, such calls also cause intangible injuries, regardless of whether the consumer has a prepaid cell phone or a plan with a limited number of minutes. The main types of intangible harm that unlawful calls cause are (1) invasion of privacy, (2) intrusion upon and occupation of the capacity of the consumer’s cell phone, and (3) wasting the consumer’s time or causing the risk of personal injury due to interruption and distraction.
One of the ways that Spokeo identifies to establish that an intangible, injury is concrete is to show that it “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, at 1549. Invasion of privacy is just such an intangible harm recognized by the common law. Almost all states recognize invasion of privacy as a common law tort. See Eli A. Meltz, No Ham, No Foul? Attempted Invasion of Privacy and the Tort of Intrusion Upon Seclusion, 83 Ford-ham L. Rev. 3431, 3440 (May, 2015) (state-by-state survey; “Currently, the vast majority of states recognize the intrusion strand of invasion of privacy either under common law or by statute”).
The invasion of privacy claim that is most analogous here is intrusion upon seclusion. See Restatement (Second) of Torts § 652B (1977). The Fourth Circuit has recognized that the TCPA’s prohibitions against robo-calls implicate privacy interests in seclusion. Maryland v. Universal Elections, Inc.,
It is not only the common law that recognizes as actionable the harm caused by invasion of privacy. The right to privacy is protected under the Constitution. See, e.g., Lawrence v. Texas,
Even if invasion of privacy were not a harm recognized as redressable through a common law tort claim, it would meet the requirement of concreteness as interpreted by Spokeo because Congress so clearly identified it as a legally cognizable harm. According to the Spokeo. majority,” because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may ‘elevat[e] to the status of legally cognizable injuries
Protection of consumers’ privacy rights was clearly foremost in Congress’s mind when it enacted the telephone call restrictions of the TCPA. The Congressional findings accompanying the TCPA repeatedly stress the purpose of protecting consumers’ privacy. For example:
(5) Unrestricted telemarketing, however, can be an intrusive invasion of privacy and, when an emergency or medical assistance telephone line is seized, a risk to public safety.
(6) Many consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers.
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(9) Individuals’ privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices.
(10) Evidence compiled by the Congress indicates that residential telephone subscribers consider automated, or prerecorded telephone calls, regardless of the content or the initiator of .the message, to be a nuisance and an invasion of privacy.
⅜ ‡ $ $
(12) Banning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective. means of protecting telephone consumers from this nuisance and privacy invasion.
(13) While the evidence presented to the Congress indicates that automated or prerecorded calls are a nuisance and an invasion of privacy, regardless of the type of call,- the Federal Communications ' Commission should have the flexibility to design different rules for those types of automated or prerecorded calls that it finds are not considered a nuisance or invasion of privacy, or for noncommercial calls, consistent with the free speech protections embodied in the First Amendment of the Constitution.
(14)Businesses also have complained to • the Congress and the Federal Communications Commission that automated or prerecorded telephone ■ calls are a nuisance, are an invasion of privacy, and interfere with interstate commerce.
Pub. L. 102-243, § 2, 105 Stat. 2394 (1991) (found as a note-to 47 U.S.C. § 227).
' As the Act’s sponsor, Senator Hollings, emphasized: “Computerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.” 137 Cong. Rec. 30,821-30,822 (1991).
Thus, Congress repeatedly identified the intangible harm of invasion of privacy as one of its primary concerns when it enacted the TCPA. As the Court noted in Spok-eo, its judgment that this harm is legally cognizable should be given great weight.
A second type of intangible harm suffered by plaintiff by the unwanted calls is intrusion upon and occupation of the capacity of the plaintiffs cell phone. The harm recognized by the ancient common law claim of trespass to chattels—the intentional dispossession of chattel, or the use of or interference with a chattel that is in the possession of another, is a close analog for a TCPA violation. See Restatement (Second) of Torts § 217 (1965). As
A number of courts have held that temporary electronic intrusion upon another person’s computerized electronic equipment constitutes trespass to chattels. See, e.g., Register.com, Inc. v. Verio, Inc.,
Courts have applied this tort theory to the very actions alleged here—unwanted telephone calls. Czech v. Wall St. on Demand,
Thus, the harm caused by unwanted robocalls to cell phones has a close relationship to the harm recognized by this ancient common law tort—a tort that protects fundamental property rights. Indeed, the TCPA can be viewed as merely applying this common law tort to a 21st-century form of personal property and a 21st-century method of intrusion. Applying this ancient tort to these calls and making redress more readily available is particularly appropriate since electronic intrusion is so much easier, and so much more readily repeated, than physical misuse, of a chattel.
The Eleventh Circuit has recognized that “the occupation of the recipient’s telephone line and fax machine” is a sufficient injury-in-fact for a TCPA claim asserting violations of the statute’s junk fax provisions. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d
A final intangible harm that the illegal calls caused here is that they required the plaintiff to tend to them and wasted the plaintiffs time. The first post-Spokeo decision to address the TCPA squarely holds that wasting the recipient’s time is a concrete injury that satisfies Article III:
Here, the court is satisfied that plaintiffs’ allegations demonstrate “concrete injury” as defined in Spokeo. In Spokeo, the “injury” plaintiffs incurred was arguably merely procedural and thus non-concrete. In contrast, the TCPA and [state law] violations alleged here, if proven, required plaintiffs to waste time answering or otherwise addressing widespread robocalls. The use of the auto-dialer, which allegedly enabled defendants to make massive amounts of calls at low cost and in a short period of time, amplifies the severity of this injury. As Congress and Washington State’s legislature agreed, such an injury is sufficiently concrete to confer standing.
Booth v. Appstack, Inc.,
A number of pr e-Spokeo decisions have also recognized that lost time is an adequate injury-in-fact in TCPA and other cases. TCPA cases include Leung v. XPO Logistics, Inc.,
When it enacted the TCPA, Congress repeatedly emphasized the nuisance aspect of robocalls, showing that it considered the interruptions that they cause and the time they cause consumers to waste to be one of the harms it sought to remedy. As noted above, Senator Hollings made this clear: “They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed.” 137 Cong. Rec. 30,821-30,822 (1991). Congress was also mindful of protecting consumers from the burdens they face when dealing with unwanted calls. One of its findings was that “technologies that might allow consumers to avoid receiving such calls ... place an inordinate burden on the consumer.” Pub. L. 102-243, § 2, 105 Stat. 2394 (1991) (found as a note to 47 U.S.C. § 227). Courts should give weight to Congress’s identification of these harms and should determine that they meet the requirement of concreteness.
Spokeo also holds that a risk of harm can also be concrete enough to satisfy Article III. Spokeo, at 1549. Unwanted
A large number of pre-Spokeo cases, applying the principles outlined above, have held that unwanted robocalls cause particularized and concrete harm, so that a plaintiff asserting a TCPA claim has Article III standing. See, e.g. Weisberg v. Kensington Professional and Associates L.L.C.,
This Court has located one additional post-Spokeo decision. In Rogers v. Capital One Bank (USA), N.A.,
Here, the Plaintiffs alleges that the Defendant made unwanted phone calls to their cell phone numbers, in violation of the TCPA. As the Eleventh Circuit has held, a violation of the TCPA is a concrete injury. Because the Plaintiffs allege that the calls were made to their personal cell phone numbers, they have suffered particularized injuries because their cell phone lines were unavailable for legitimate use during the unwanted calls. The Plaintiffs have alleged sufficient facts to support standing.
Rogers *2, citing Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A.,
For the reasons stated above, .the- Motion to Dismiss Pursuant to Rule 12(b)(1) or in the Alternative, Motion to Stay Pending Supreme Court Review [Doc. 71] is DENIED. As a final matter, this Court notes that this matter was stayed pending resolution of Spokeo. As the parties are keenly aware, the Supreme Court handed down its ruling on that matter ón May 16, 2016. Although some would argue the matter was not technically resolved as it was remanded based on the Ninth Circuit’s incomplete standing analysis, this Court has expressed its position herein that this matter has effectively been resolved. Accordingly, to ''avoid any confusion, this Court hereby LIFTS the stay.
It is so ORDERED.
Notes
. On March 15, 2016, plaintiff amended her Complaint to join Ganna Freiberg as a defendant in place of Got Warranty, Inc,, which is believed to be defunct.