Griffith v. ContextMedia, Inc., No. 1:2016cv02900 - Document 32 (N.D. Ill. 2016)

Court Description: Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 10/19/2016. Mailed notice (jdh)
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Griffith v. ContextMedia, Inc. Doc. 32 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Christy Griffith ) ) ) ) ) ) Case No. 16 C 2900 ) ) ) ) ) ) Plaintiff, v. ContextMedia, Inc. Defendant. MEMORANDUM OPINION ORDER In this action, plaintiff alleges that defendant violated the Telephone Consumer automated text Protection messages situated individuals. for lack of to Act her (“TCPA”) and to by a sending class of unwanted similarly Before me is defendant’s motion to dismiss standing, and, in the alternative, to dismiss plaintiff’s claims for attorneys’ fees and for injunctive relief. The Defendant motion to insists dismiss that for of failure of “[t]he lack standing is Congress to denied. consider unwanted text messages dooms Plaintiff’s claim that receipt of unwanted text messages Congress elevated records from 1991. to is a the concrete that of harm,” intangible citing harm that congressional But as defendant acknowledges, text messaging did not even exist until 1992. indicates type Congress sought Moreover, the legislative history to protect the “freedom [of consumers] to choose how their telephones are used,” 137 Cong. Rec. S18317-01, 1991 WL 250460 (Senator Pressler), and unwanted text messages are no less an encroachment on that freedom than unwanted phone calls. Defendant’s argument that unsolicited phone calls are unique in this respect is unpersuasive. Plaintiff alleges that on at least November 29, December 23, December 24, December 27, December 28, December 29, January 1, January 2, January 3, January 5, January 23 (multiple times), February 4 and February 5, she replied “STOP” in an effort to revoke her consent to receive defendants’ automated text messages. Plaintiff’s anger and frustration over the futility of her efforts is apparent, see e.g., ¶ 29 (alleging that her response in one instance was, “STOP STOP STOP FOR THE LOVE OF GOD STOP”), and will be readily appreciated by any consumer who has ever received such messages. Plaintiff plainly alleges an inability to “choose how [her] telephone [was] used,” which falls squarely within the type of harm Congress sought to prevent in enacting the TCPA. Accordingly, the fact that Congress did not explicitly address text messages in considering the TCPA is not fatal to plaintiff’s standing. The complaint also alleges that plaintiff “lost time reading, tending to and responding to” the unsolicited communications, and that the texts invaded her privacy. Courts in this district have held, both before and after the Court’s decision in Spokeo, Inc. 2 v. Robins, 136 S. Ct. 1540 (2016), that loss of time and privacy are concrete injuries for the purpose of conferring Article III standing. See, e.g., Aranda v. Caribbean Cruise Line, Inc.,---F. Supp. 3---, 2016 WL 4439935 (Kennelly, J.); Leung v. XPO Logistics, 164 F. Supp. 3d 1032, 1037 (N.D. Ill. 2015); and Martin v. Leading 3292838, Edge at Recovery *3 (N.D. Solutions, Ill. Aug. No. 10, 11 C 2012) 5886, 2012 (Lefkow, WL J.). Furthermore, courts in other jurisdictions have held that claims alleging the receipt of unwanted text messages state an injury-infact under the TCPA. See, e.g., Meyer v. Bebe Stores, Inc., No. 14-cv-00267, 2015 WL 431148, at *2 (N.D. Ca. Feb. 2, 2015) (citing Smith v. Microsoft Corp., No. 11–CV–1958, 2012 WL 2975712, at *6 (S.D. Cal. July 20, 2012) (“by alleging he received a text message in violation of the TCPA, [plaintiff] has established a particularized injury in satisfaction of Article III premised on the invasion of his privacy, even absent any economic harm”)). Nothing reiterated in the Spokeo is established to the contrary. principle that There, a the plaintiff Court cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III” and emphasized that standing requires both a “particularized” and a “concrete” injury. 136 S.Ct. at 1548-49. The Court went on to examine the contours of the latter requirement and explained that while allegations of a tangible harm are generally sufficient to 3 state a concrete “tangible,” and concrete.” In injury, “concrete” “intangible is injuries not can synonymous with nevertheless be Id. at 1549 (citing cases). two thorough and well-reasoned post-Spokeo decisions upholding the plaintiffs’ assertion of standing in a TCPA action, Judge Kennelly explained that section 227 of the TCPA “establishes substantive, not procedural rights to be free from telemarketing calls consumers have not consented to receive.” Aranda, 2016 WL 4439935, at *6 (denying motion for summary judgment for lack of standing); A.D. v. Credit One Bank, N.A., No. 14 C 10106, 2016 WL 4417077, at *5-*6 (N.D. Ill. Aug 19, 2016) (Kennelly, J.) (denying motion to dismiss for lack of standing). Mindful of the Spokeo Court’s observation that in conducting the standing 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,” 138 F.3d at 1549, Judge Kennelly explained that the plaintiffs’ standing was supported by the fact that “American and English courts have long heard cases in which plaintiffs alleged that defendants affirmatively directed their conduct at plaintiffs to invade 4439935, their at *6; privacy 2016 WL and disturb 4417077 at their *7. solitude.” Judge 2016 Kennelly WL also observed that Congress “enacted the TCPA to protect consumers from the annoyance, irritation, and unwanted nuisance of telemarketing 4 phone calls, concrete granting interests protection in preserving to consumers’ their rights identifiable to privacy and seclusion.” 2016 WL 4439935, at *6; 2016 WL 4417077 at *7. I agree with Judge Kennelly’s analysis and join the courts in this district alleging and the elsewhere receipt to of have concluded plaintiffs unsolicited specific, that telephone communications, whether by voice or text message, have Article III standing to pursue TCPA claims based on lost time and invasion of privacy. In the defendant alternative seeks to dismissal dismissal of fees and injunctive relief. for plaintiff’s lack claims of for standing, attorneys’ This alternative request is granted as to the claim for attorneys’ fees and denied as to the claim for injunctive relief. Plaintiff acknowledges that the TCPA does not authorize attorneys’ fees but argues that because she purports to represent a class, her claim for attorneys’ fees under the “common fund” doctrine is appropriate under Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). But in Holtzman v. Turza, 828 F.3d 606, 608 (7th class Cir. 2016), the plaintiff’s Seventh request explaining that because Protection Act seek recipients,” they do Circuit for attorneys’ “suits recovery not squarely under for create fees the under Telephone discrete common rejected wrongs funds. This a TCPA Boeing, Consumer to the holding reiterated the conclusion the court had drawn three years earlier 5 in the same case. Holtzman v. Turza, 728 F.3d 682, 688 (7th Cir. 2013) (“Some class actions stem from aggregate and undifferentiated injuries; these create genuine common funds. But this action recipient of stems the from faxes; discrete it does injuries not create suffered by a fund.”). common each Plaintiff does not offer any basis for believing that the Seventh Circuit would hold differently in this case. I am not persuaded, however, that dismissal of plaintiff’s claim for injunctive relief is appropriate at this juncture. plaintiff points out, the TCPA expressly authorizes As injunctive relief, and plaintiff’s allegations—particularly those directed to her months-long efforts to stop defendants’ unwanted texts—are sufficient to entitle her to develop the factual record as to whether injunctive relief is appropriate. ENTER ORDER: _____________________________ Elaine E. Bucklo United States District Judge Dated: October 19, 2016 6