Noreen Susinno v. Work Out World Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3277
___________
NOREEN SUSINNO,
individually and on behalf of all others similarly situated,
Appellant
v.
WORK OUT WORLD INC.;
JOHN DOES 1–25
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 3-15-cv-05881)
District Judge: Honorable Peter G. Sheridan
___________
Argued March 8, 2017
Before: HARDIMAN and KRAUSE, Circuit Judges,
and STENGEL, District Judge.*
(Filed: July 10, 2017)
Keith J. Keogh
Timothy J. Sostrin [Argued]
Keogh Law
55 West Monroe Street, Suite 3390
Chicago, IL 60603
Yitzchak Zelman
Ari H. Marcus
Marcus & Zelman
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Counsel for Appellant
Joshua S. Bauchner [Argued]
Michael H. Ansell
Ansell Grimm & Aaron
365 Rifle Camp Road
Woodland Park, NJ 07424
Counsel for Appellees
*
The Honorable Lawrence F. Stengel, United States
District Judge for the Eastern District of Pennsylvania, sitting
by designation.
2
Andrew J. Pincus [Argued]
Mayer Brown
1999 K Street, N.W.
Washington, DC 20006
Counsel for Amicus Chamber of Commerce in Support
of Appellees
Brian Melendez
Dykema Gossett
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Counsel for Amicus ACA International in Support of
Appellees
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Noreen Susinno appeals the District Court’s order
dismissing her Telephone Consumer Protection Act (TCPA)
claim against Work Out World Inc. for lack of subject matter
jurisdiction. Because the TCPA provides Susinno with a
cause of action, and her alleged injury is concrete, we will
reverse the order of the District Court and remand for further
proceedings.
I
Susinno alleged that on July 28, 2015, she received an
unsolicited call on her cell phone from a fitness company
called Work Out World (WOW). Susinno did not answer the
3
call, so WOW left a prerecorded promotional offer that lasted
one minute on her voicemail.
Susinno filed a complaint in the United States District
Court for the District of New Jersey claiming WOW’s phone
call and message violated the TCPA’s prohibition of
prerecorded calls to cellular telephones, 47 U.S.C.
§ 227(b)(1)(A)(iii). WOW moved to dismiss Susinno’s
complaint for lack of subject matter jurisdiction.
The District Court granted WOW’s motion to dismiss.
Its decision was based on two conclusions: (1) a single
solicitation was not “the type of case that Congress was trying
to protect people against,” App. 38, and (2) Susinno’s receipt
of the call and voicemail caused her no concrete injury.
Susinno filed this timely appeal.
II
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C.
§ 1291.
Our review of an order dismissing a complaint for lack
of subject matter jurisdiction is plenary, McCann v. Newman
Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006), as is our
review of questions of statutory interpretation, United States
v. Zavrel, 384 F.3d 130, 132 (3d Cir. 2004). “To survive a
motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted).
4
III
This appeal poses two distinct questions: Does the
TCPA prohibit the conduct alleged by Susinno? And if it
does, is the harm alleged sufficiently concrete for Susinno to
have standing to sue under Article III of the United States
Constitution?
A
The TCPA provides consumers with a private right of
action for certain prohibited uses of automated telephone
equipment. 47 U.S.C. § 227(b)(3). WOW argues that the
TCPA does not prohibit a single prerecorded call to a cell
phone if the phone’s owner was not charged for the call.
Susinno claims that it does.
“As in all cases of statutory interpretation, our inquiry
begins with the language of the statute and focuses on
Congress’ intent.” United States v. Abbott, 574 F.3d 203, 206
(3d Cir. 2009). The relevant text of the TCPA reads:
It shall be unlawful for any person within the
United States . . .
(A) to make 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 . . .
(iii) to any telephone number
assigned to a paging service,
cellular telephone service,
5
specialized mobile radio
service, or other radio
common carrier service, or
any service for which the
called party is charged for the
call . . . .
47 U.S.C. § 227(b)(1).
WOW argues that the structure of this provision limits
the scope of “cellular telephone service” to cell phone
services where “the called party is charged for the call.”
WOW Br. 15 (emphasis omitted) (quoting 47 U.S.C. §
227(b)(1)(A)(iii)). According to WOW, when Congress
prohibited prerecorded calls to cell phones in the TCPA, it
primarily was concerned with the cost of those calls. See
WOW Br. 2, 4–5 (quoting the House and Senate reports for
the TCPA).
WOW’s reading of section 227(b)(1) is strained. As
the Court of Appeals for the Eleventh Circuit explained:
“[t]he rule of the last antecedent requires the phrase ‘for
which the called party is charged for the call,’ [in §
227(b)(1)], ‘to be applied to the words or phrase immediately
preceding (i.e. “any service”), and not to be construed as
extending to or including others more remote.’” Osorio v.
State Farm Bank, F.S.B., 746 F.3d 1242, 1257 (11th Cir.
2014) (citation and alterations omitted).
But even apart from the grammatical analysis, we
think another provision of the TCPA decisively rebuts
WOW’s reading of the statute. Section 227(b)(2)(C) provides
that the Federal Communications Commission (FCC):
6
may, by rule or order, exempt from the
requirements of paragraph (1)(A)(iii) of this
subsection calls to a telephone number assigned
to a cellular telephone service that are not
charged to the called party, subject to such
conditions as the Commission may prescribe as
necessary in the interest of the privacy rights
this section is intended to protect.
If it were the case (as WOW suggests) that cell phone calls
not charged to the recipient were not covered by the general
prohibition, there would have been no need for Congress to
grant the FCC discretion to exempt some of those calls. We
also think it significant that this section states “calls to a [cell
phone] . . . not charged to the called party” can implicate
“privacy rights” that Congress “intended to protect,” even if
the phone’s owner is not charged for the call. 47 U.S.C.
§ 227(b)(2)(C).
WOW notes that the statute’s congressional findings
refer to “residential telemarketing practices” and “calls to the
home.” See Telephone Consumer Protection Act of 1991,
Pub. L. 102–243, § 2, 105 Stat. 2394 (1991). Although it is
true that the TCPA placed particular emphasis on intrusions
upon the privacy of the home in 1991, this expression of
particular concern for residential calls does not limit—either
expressly or by implication—the statute’s application to cell
7
phone calls. Accordingly, the TCPA provides Susinno a cause
of action for the conduct she alleged.1
B
1
We turn next to the question of whether Susinno has
alleged a sufficiently concrete injury to establish
constitutional standing to sue. This issue implicates the
Supreme Court’s recent decision in Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016). There, the Court considered Thomas
Robins’s claim that Spokeo, the “people search engine,”
violated the Fair Credit Reporting Act (FCRA) by
disseminating inaccurate information about his
creditworthiness. 136 S. Ct. at 1544. Spokeo stated
inaccurately that Robins “is married, has children, is in his
50’s, has a job, is relatively affluent, and holds a graduate
degree.” Id. at 1546. Although these inaccuracies did not have
an obvious negative effect on Robins’s creditworthiness, the
Court of Appeals for the Ninth Circuit held that an
1
Amicus ACA International argues that to impose
liability under § 227(b)(1) where the cell phone’s owner isn’t
charged for the call constitutes a violation of due process.
This argument was not raised by WOW, and even if it had
been, we would not find the TCPA void for vagueness where,
as here, it neither “fails to provide people of ordinary
intelligence a reasonable opportunity to understand what
conduct it prohibits,” nor “authorizes or even encourages
arbitrary and discriminatory enforcement.” United States v.
Stevens, 533 F.3d 218, 249 (3d Cir. 2008) (citation omitted).
8
individualized violation of a statutory right always constitutes
an injury sufficient to confer standing. Id.The Supreme Court vacated the decision of the Ninth
Circuit, clarifying that “Article III standing requires a
concrete injury even in the context of a statutory violation.”
Id. at 1549. Significantly for this appeal, the Court also noted
that “intangible injuries can nevertheless be concrete.” Id. To
determine whether an intangible injury is concrete, the Court
explained that “both history and the judgment of Congress
play important roles.” Id. As for the historical inquiry, “it is
instructive to 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. The Supreme Court also recognized
that Congress may elevate certain intangible harms “to the
status of legally cognizable injuries,” even if those injuries
“were previously inadequate in law.” Id. (citation omitted);
see also id. (explaining that “because Congress is well
positioned to identify intangible harms that meet minimum
Article III requirements, its judgment is also instructive and
important,” but that this “does not mean that a plaintiff
automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right”).
In In re Horizon Healthcare Services Inc. Data Breach
Litigation, 846 F.3d 625 (3d Cir. 2017), we applied Spokeo to
a claim for inadequate protection of personal information in
violation of the FCRA. Despite no allegation “that the
information was actually used to [the plaintiffs’] detriment,”
we held that “[i]n light of the congressional decision to create
a remedy for the unauthorized transfer of personal
information, a violation of [the] FCRA gives rise to an injury
sufficient for Article III standing purposes.” Id. at 629.
9
While we recognized that Spokeo teaches that “there
are some circumstances where the mere technical violation of
a procedural requirement of a statute cannot, in and of itself,
constitute an injury in fact,” we found “no occasion to
consider” the “limiting circumstances . . . not defined in
Spokeo.” Id. at 638. We reached this conclusion for two
reasons. First, plaintiffs in Horizon alleged “the very injury
that [the] FCRA is intended to prevent.” Id. at 640. Second,
“the ‘intangible harm’ that [the] FCRA seeks to remedy ‘has
a close relationship to a harm [i.e. invasion of privacy] that
has traditionally been regarded as providing a basis for a
lawsuit in English or American courts.’” Id. at 639–40
(alterations in original) (quoting Spokeo, 136 S. Ct. at 1549).2
This close relationship existed even though the conduct
alleged would not have “give[n] rise to a cause of action
under common law.” Id. at 639.
2
We summarize Horizon’s rule as follows. When one
sues under a statute alleging “the very injury [the statute] is
intended to prevent,” and the injury “has a close relationship
to a harm . . . traditionally . . . providing a basis for a lawsuit
in English or American courts,” a concrete injury has been
pleaded. Id. at 639–40. We do not, and need not, conclude
2
Horizon thus forecloses the argument by amicus
Chamber of Commerce that Spokeo disallows any “claim
based on privacy concerns” on the grounds that only “harms
recognized at the time of the founding [are] sufficient to
support a lawsuit.” Chamber Br. 13–14 (emphasis in
original).
10
that intangible injuries falling short of this standard are never
concrete. See Horizon, 846 F.3d at 638 (declining to
determine minimum standard of concreteness where
unnecessary to decide case). Rather, we simply observe that
all intangible injuries that meet this standard are concrete.
Applying Horizon’s standard to the facts of this
appeal, we conclude that the injuries alleged by Susinno are
concrete for two reasons.
First, Congress squarely identified this injury. The
TCPA addresses itself directly to single prerecorded calls
from cell phones, and states that its prohibition acts “in the
interest of [ ] privacy rights.” 47 U.S.C. § 227(b)(2)(C). The
congressional findings in support of the TCPA likewise refer
to complaints that “automated or prerecorded telephone calls
are a nuisance [and] . . . an invasion of privacy.” Pub. L. 102–
243, § 2. We therefore agree with Susinno that in asserting
“nuisance and invasion of privacy” resulting from a single
prerecorded telephone call, her complaint asserts “the very
harm that Congress sought to prevent,” arising from
prototypical conduct proscribed by the TCPA. App. 11 (First
Amended Complaint); see also Van Patten v. Vertical Fitness
Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (finding two
unwanted text messages constituted a concrete injury under
the TCPA, as they “present the precise harm and infringe the
same privacy interests Congress sought to protect”).
Having determined that the amended complaint
pleaded an injury Congress aimed to prevent, we turn next to
the historical inquiry. We think Susinno has satisfied this test
as well. As we said in Horizon, a close relationship does not
require that the newly proscribed conduct would “give rise to
a cause of action under common law.” 846 F.3d at 639. But it
11
does require that newly established causes of action protect
essentially the same interests that traditional causes of action
sought to protect. The Court of Appeals for the Ninth Circuit
has opined that TCPA claims closely relate to traditional
claims for “invasions of privacy, intrusion upon seclusion,
and nuisance [which] have long been heard by American
courts.” Van Patten, 847 F.3d at 1043. In our view, intrusion
upon seclusion best fits the facts of this case.
Traditionally, a plaintiff’s “privacy is invaded” for the
purpose of an intrusion upon seclusion claim by telephone
calls “only when [such] calls are repeated with such
persistence and frequency as to amount to . . . hounding.”
Intrusion upon Seclusion, Restatement (Second) of Torts
§ 652B, cmt d (1977). The Second Restatement suggests that
because “two or three” calls would not be “highly offensive
to the ordinary reasonable [person],” they traditionally would
provide no cause of action. Id. Yet when Congress found that
“[u]nsolicited telemarketing phone calls or text messages, by
their nature, invade the privacy and disturb the solitude of
their recipients,” Van Patten, 847 F.3d at 1043, it sought to
protect the same interests implicated in the traditional
common law cause of action.3 Put differently, Congress was
3
We agree with the Chamber of Commerce that a
party does not satisfy the concreteness analysis “simply by
appending the word ‘privacy’ to her allegation.” Chamber Br.
14. But intrusion upon seclusion is a well-recognized subset
of common law invasion of privacy. See Wilcher v. City of
Wilmington, 139 F.3d 366, 379 (3d Cir. 1998); W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 117,
p. 854–55 (5th ed. 1984) (discussing “unreasonable and
highly offensive intrusion upon the seclusion of another” as
12
not inventing a new theory of injury when it enacted the
TCPA. Rather, it elevated a harm that, while “previously
inadequate in law,” was of the same character of previously
existing “legally cognizable injuries.” Spokeo, 136 S. Ct. at
1549. Spokeo addressed, and approved, such a choice by
Congress.
For these reasons, we hold that Susinno has alleged a
concrete, albeit intangible, harm under the Supreme Court’s
decision in Spokeo and our decision in Horizon. Because we
so hold, we need not address her additional arguments that
her various tangible injuries provide alternative grounds for
standing.4
* * *
“[C]ourts benefit from straightforward rules under
which they can readily assure themselves of their power to
hear a case.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).
“consist[ing] of intentional interference with another’s
interest in solitude or seclusion,” including “persistent and
unwanted telephone calls” (footnote omitted)).
4
Nor do we need to resolve the issue, not fully briefed
by the parties, of whether wasted time is a tangible or
intangible harm. Compare A.D. v. Credit One Bank, N.A.,
2016 WL 4417077, at *7 (N.D. Ill. Aug. 19, 2016) (“tangible
harms” in TCPA context may include “wasted time”) with
Mey v. Got Warranty, Inc., 193 F. Supp. 3d 641, 648 (N.D.
W. Va. 2016) (“final intangible harm” caused by unwanted
calls included “wast[ing] the plaintiff’s time”).
13
Our opinion today repeats our “understand[ing] that the
Spokeo Court meant to reiterate traditional notions of
standing.” Horizon, 846 F.3d at 638. And the traditional
notion of standing “requir[es] only that claimant allege some
specific, identifiable trifle of injury.” Blunt v. Lower Merion
School Dist., 767 F.3d 247, 278 (3d Cir. 2014) (alterations
and citations omitted). Where a plaintiff’s intangible injury
has been made legally cognizable through the democratic
process, and the injury closely relates to a cause of action
traditionally recognized in English and American courts,
standing to sue exists.
Consistent with this legal standard, we hold that the
TCPA provides Susinno with a cause of action, and that her
injury satisfies the concreteness requirement for constitutional
standing. Accordingly, we will vacate the District Court’s
order dismissing her case and remand for further proceedings
consistent with this opinion.
14