Court Finds “Nuisance” to be Concrete Injury under the TCPA

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January 6, 2017

tcpaThe United States District Court for the Middle District of Florida has ruled that nuisance and invasion of privacy claims are concrete injuries for standing purposes under the Telephone Consumer Protection Act (“TCPA”).  In the class action lawsuit against Hilton Grand Vacations Company, LLC (“Hilton”), Hilton argued, among other things, that the plaintiff, a member of a rewards program who allegedly received autodialed telemarketing calls to her cellular telephone, did not allege any concrete harm as required for standing purposes by the United States Supreme Court decision in Spokeo, Inc. v. Robins.  The Court, however, rejected Hilton’s argument and held that the plaintiff had, in fact, alleged a concrete injury under the TCPA.

Is Nuisance Sufficient to Cause a Concrete Injury Under the TCPA?

Hilton moved to dismiss the putative TCPA class action complaint on several grounds including, but not limited to, that the plaintiff failed to allege a concrete injury.  Hilton argued that under the Supreme Court decision in Spokeo, the plaintiff failed to allege any injury beyond a mere technical violation of the TCPA.  However, the Court rejected this argument and, relying on decisions from other courts, determined that a claim of nuisance and invasion of privacy resulting from the receipt of the telemarketing calls at issue is sufficient to allege a concrete injury under the TCPA.  In addition, the Court stated that “it is unnecessary for Plaintiff to allege that she answered the calls . . . . Plaintiff has sufficiently alleges [sic.] a concrete injury that the TCPA is designed to protect.”

Protect Yourself with Respect to the TCPA

We recently blogged about Hooters making and losing a similar TCPA “concrete injury” argument.  The decisions in the Hooters and Hilton actions highlight a growing number of courts seemingly intent on finding a concrete TCPA injury where there may not in fact be one.  Ultimately, the United States Supreme Court may soon have to resolve the question as to what constitutes a concrete injury insofar as the TCPA is concerned.

If you are interested in learning more about this topic, please visit the Telemarketing Law practice area of our website.  If you have been served with process concerning your telemarketing practices in general, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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