Sixth Circuit: Single RVM Sufficient for Standing

TCPA Connect

A plaintiff who alleged the receipt of a single ringless voicemail (“RVM”) suffered a concrete injury for purposes of Article III standing, the Sixth Circuit Court of Appeals has ruled.

In his Telephone Consumer Protection Act (TCPA) complaint, plaintiff Matthew Dickson claimed that Direct Energy delivered multiple RVMs to his cell phone in 2017 advertising its services.

One RVM placed on November 3, 2017, explicitly stated that the call was from “Nancy Brown with Direct Energy.” Dickson alleged that he was harmed by the communications because they tied up his phone line, cost him money and were generally a nuisance. He also claimed that the calls disturbed his solitude and invaded his privacy.

Direct Energy retained an expert witness to analyze Dickson’s phone records. The expert concluded that of the 11 RVMs Dickson produced, only the November 3, 2017 RVM was from Direct Energy.

The defendant then moved to dismiss the complaint for lack of standing, arguing that Dickson had suffered no concrete injury. The district court granted the motion, holding that the receipt of a single RVM did not constitute a concrete harm sufficient for Article III standing.

But the Sixth Circuit reached a different conclusion.

Noting that it had not previously considered whether the receipt of a single RVM for commercial purposes constituted concrete harm sufficient to confer standing under the TCPA, the court conducted a two-part inquiry.

First, it considered whether Dickson’s asserted injury “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts,” as set forth in Spokeo.

The court found the Seventh Circuit’s opinion in Gadelhak v. AT&T Services, Inc. instructive, where the federal appellate panel looked to the common law tort of intrusion upon seclusion.

Direct Energy sent an RVM to Dickson’s phone and interjected itself into his private sphere, the Sixth Circuit said, implicating Dickson’s common law right to seclusion.

The Sixth Circuit also distinguished the Eleventh Circuit’s holding in Salcedo v. Hanna—where the court found a single text message to be insufficient to establish Article III standing—explaining that “Spokeo requires a close common-law analogue in kind, not degree.”

As for the second part of the inquiry, the Sixth Circuit considered whether the defendant’s alleged misconduct aligned with the conduct Congress sought to regulate through federal law—and found that it did.

“Here, Dickson alleges that he received [an] unsolicited marketing call from Direct Energy: the November 3 RVM,” the court said. “He also validly maintains that receipt of this message invaded his privacy. His injury therefore falls within the ambit of what Congress deemed to be an actionable harm when it enacted the TCPA.”

With both prongs of the standing analysis satisfied, the court held that Dickson suffered a concrete injury-in-fact sufficient for Article III standing purposes, reversing the district court’s decision dismissing the case.

To read the opinion in Dickson v. Direct Energy, LP, click here.

Why it matters

The Sixth Circuit took a pro-plaintiff position when it found that a single RVM was a concrete injury sufficient to satisfy Article III, holding that an alleged injury should be similar to its common law analogue in kind, not in degree.



pursuant to New York DR 2-101(f)

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