This article originally appeared on the Consumer Financial Services Legal Update. It is republished with permission from the author.

She may be the only judge in the country still actively dismissing TCPA claims for lack of Article III standing following Spokeo, but Judge Cathy Ann Bencivengo demonstrated last month that she is not going to change her views on the subject anytime soon.

In Selby v. Ocwen Loan Servicing, Case No.: 3:17-CV-973-CAB-BLM, 2017 U.S. Dist. LEXIS 189995 (S.D. Cal. Nov. 16, 2017), Judge Bencivengo was again asked by a Defendant to dismiss TCPA claims on the grounds that the Court lacked Article III standing to hear the dispute because the Plaintiff had not suffered any “actual” or “concrete” harm  as a result of the errant phone calls. As she has done twice before in the last year, Judge Bencivengo obliged.

The alleged facts of Selby are not particularly great for a Spokeo challenge. Plaintiff alleged receipt of 1,008 automated calls to her cell phone, all of which were placed without her consent. She specifically alleged that these calls “caused Plaintiff frustration and distress, ‘disrupted [her] daily activities and the peaceful enjoyment of [her] personal and professional life, including the ability to use [her] phone,’ and caused her to miss ‘important communications from friends and family.'” Selby at *4. Take it from me, those allegations of harm are better than 90 percent of the allegations contained within TCPA complaints floating out there these days.

Nonetheless, the Court had little problem dismissing for lack of harm. The Court found first that the facts were “indistinguishable” from Judge Bencivengo’s earlier decision in Romero v. Department Stores National Bank, 199 F. Supp. 3d 1256 (S.D. Cal. 2016).

Although Romero has been largely criticized by other district courts over the course of the last year, Judge Bencivengo considered that decision dispositive of the issues before her. As the Court put it: “assuming the truth of all of Plaintiff’s factual allegations, including that Ocwen used an ATDS to call Plaintiff’s cellular telephone 1008 times in connection with its efforts to collect on the Mortgage debt, that Plaintiff either never consented or had revoked her consent to receive these calls, and that these calls caused Plaintiff frustration and distress, the Court’s reasoning in Romero is equally applicable here and also warrants dismissal of the TCPA claims in the SAC for lack of standing.” Id. at *7.

The Court also found intervening Ninth Circuit authority to be inapposite. The Court narrowly construed Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) as applying only to telemarketing calls, which is actually an extremely helpful—and accurate—observation for TCPA defense lawyers practicing in the Ninth Circuit.

Building on the finding that the TCPA was designed to prevent telemarketing calls, Selby concludes that the type of harm suffered by the Defendant was not the type that Congress intended to prevent when the TCPA was enacted. As such, the Court granted the Defendant’s motion and dismissed the case.

Accordingly, Judge Bencivengo’s latest ruling not only demonstrates her conviction that TCPA cases do not cause actionable concrete harm, it also sets forth a blueprint for unravelling the myth that the TCPA was designed to prevent non-telemarketing calls. It was not, as the FCC’s own rulings have made clear. If that unravelling continues, debt-collection calls may become non-actionable in federal court after all, and Selby may end up being the case that started it all.


Tags: TCPA

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