Number of Calls Informs Standing, Eleventh Circuit Says

TCPA Connect

A district court erred when it failed to ascertain the number of telephone calls allegedly received by the plaintiffs in a Telephone Consumer Protection Act (TCPA) class action, the Eleventh U.S. Circuit Court of Appeals determined.

A group of 16 individuals filed suit against Ocwen Loan Servicing, LLC, claiming that they received calls made using an automated telephone dialing system (ATDS) in violation of the TCPA.

Ocwen filed a motion to dismiss, disputing that its dialing system was an ATDS and the district court granted the motion.

The plaintiffs appealed and the Eleventh Circuit reversed, having discovered a “significant” jurisdictional issue unaddressed by the district court.

For eight of the 16 plaintiffs, the complaint stated the exact number of calls received, ranging from 27 calls to 877 calls.

“However, for the other eight plaintiffs, the complaint states that the ‘[e]xact number of calls is not confirmed at this point,’” the court said. “This language is ambiguous. For any of these plaintiffs, the ‘exact number of calls’ they received could be zero, one, or more than one. Each of these scenarios would potentially present a different resolution to the standing issue.”

Article III of the Constitution requires plaintiffs to have suffered a concrete injury, and the Eleventh Circuit has ruled that “‘[t]he receipt of more than one unwanted telemarketing call … is a concrete injury that meets the minimum requirements of Article III standing,’” the court explained.

While recent case law in the circuit has made the issue less clear, more than one call has been held as a concrete injury that confers standing. However, case law has yet to resolve whether a single call is sufficient to confer standing.

“Thus, the resolution of the standing question could differ depending on how many calls each plaintiff is alleged to have received,” the court wrote. “Because we cannot ascertain from the allegations in the operative complaint how many calls each of those eight plaintiffs received … we vacate the dismissal and remand this case to the district court for a ruling on the issue of Article III standing in the first instance.”

To read the opinion in Evans v. Ocwen Loan Servicing, LLC, click here.

Why it matters: The decision provides a roadmap for defendants looking to challenge standing in a TCPA case where a plaintiff has failed to plead the exact number of calls or texts allegedly received.



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