The Third Circuit handed down an opinion Monday holding that a violation of the Telephone Consumer Protection Act (TCPA) confers Article III standing even in the case of intangible injuries.
The opinion may prove to be less interesting for its impact on TCPA jurisprudence than for guiding courts in their efforts to understand and apply the Supreme Court’s Spokeo decision. After all, within the TCPA context, there already appears to be a consensus that statutory violations satisfy Article III’s requirements.
But post-Spokeo, courts have grappled with the opinion’s distinction between “procedural” and “substantive” statutory violations. Some courts have focused on that distinction; others have found it unhelpful.
The Third Circuit’s new decision, in Susinno v. Work Out World, does not require distinguishing between procedural and substantive harms – even though the Third Circuit’s earlier Horizon decision had emphasized the distinction. Per Susinno:
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.
(Ellipses in original.)
There are two important concepts to note about this standard.
First, it amounts to a two-element test: Plaintiff must plead both “the very injury” the statute intended to prevent (e.g., unwanted telemarketer calls) and a “close relationship” between that injury and a traditionally recognized harm (e.g., intrusion upon seclusion or nuisance). For the “close relationship” element, though, there is no need to actually make out the elements of the corresponding tort.
Second, the Third Circuit was careful to say that satisfying this test is sufficient to meet Spokeo’s requirements, but it is not necessary: “We do not, and need not, conclude that intangible injuries falling short of this standard are never concrete.” Left unanswered, for now, is what other ways an intangible injury might satisfy Spokeo.