Dickson v. Direct Energy, LP, No. 22-3394 (6th Cir. 2023)
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Dickson alleges that Direct delivered multiple ringless advertising voicemails (RVMs) directly into his voicemail box, without placing a traditional call to his wireless phone. An RVM placed on November 3, 2017, stated that the call was from “Nancy Brown with Direct Energy.” Dickson never consented to receive these communications. Dickson filed a purported class action, alleging violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, automated calling prohibitions. At his deposition, Dickson testified that he received 11 RVMs from Direct and that he generally listened to every voicemail message in its entirety. Direct retained an expert witness to analyze Dickson’s phone records, who concluded that only the November 3, 2017 voicemail was from Direct.
The district court dismissed, holding that Dickson’s receipt of one RVM did not constitute concrete harm sufficient for Article III standing because he could not recall what he was doing when he received it, he was not charged for the RVM, it did not tie up his phone line, and he spent a small amount of time reviewing the RVM. The Sixth Circuit reversed. Regardless of the number of RVMs Dickson received, his asserted injury bears a close relationship to one recognized at common law, intrusion upon seclusion; Direct caused Dickson precisely the type of harm Congress sought to address through the TCPA.
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