United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION ORDER
E. Bucklo United States District Judge
action, plaintiff alleges that defendant violated the
Telephone Consumer Protection Act (“TCPA”) by
sending unwanted automated text messages to her and to a
class of similarly situated individuals. Before me is
defendant's motion to dismiss for lack of standing, and,
in the alternative, to dismiss plaintiff's claims for
attorneys' fees and for injunctive relief.
motion to dismiss for lack of standing is denied. Defendant
insists that “[t]he failure of Congress to consider
unwanted text messages dooms Plaintiff's claim that
receipt of unwanted text messages is the type of intangible
harm that Congress elevated to a concrete harm, ”
citing congressional records from 1991. But as defendant
acknowledges, text messaging did not even exist until 1992.
Moreover, the legislative history indicates that Congress
sought 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
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
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. 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 Edge Recovery Solutions, No.
11 C 5886, 2012 WL 3292838, at *3 (N.D.Ill. Aug. 10, 2012)
(Lefkow, J.). Furthermore, courts in other jurisdictions have
held that claims alleging the receipt of unwanted text
messages state an injury-in-fact 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”)).
in Spokeo is to the contrary. There, the Court
reiterated the established principle that a plaintiff 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 state a concrete injury, “concrete” is not
synonymous with “tangible, ” and
“intangible injuries can nevertheless be
concrete.” Id. at 1549 (citing cases).
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 their privacy
and disturb their solitude.” 2016 WL 4439935, at *6;
2016 WL 4417077 at *7. Judge Kennelly also observed that
Congress “enacted the TCPA to protect consumers from
the annoyance, irritation, and unwanted nuisance of
telemarketing phone calls, granting protection to
consumers' identifiable concrete interests in preserving
their rights to privacy and seclusion.” 2016 WL
4439935, at *6; 2016 WL 4417077 at *7.
with Judge Kennelly's analysis and join the courts in
this district and elsewhere to have concluded that plaintiffs
alleging the receipt of specific, unsolicited telephone
communications, whether by voice or text message, have
Article III standing to pursue TCPA claims based on lost time
and invasion of privacy.
alternative to dismissal for lack of standing, defendant
seeks dismissal of plaintiff's claims for attorneys'
fees and injunctive relief. 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 Cir.
2016), the Seventh Circuit squarely rejected a TCPA class
plaintiff's request for attorneys' fees under
Boeing, explaining that because “suits under
the Telephone Consumer Protection Act seek recovery for
discrete wrongs to the recipients, ” they do not create
common funds. This holding reiterated the conclusion the
court had drawn three years earlier 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 stems from discrete injuries suffered by each
recipient of the faxes; it does not create a common
fund.”). Plaintiff does not offer any basis for
believing that the Seventh Circuit would hold differently in
not persuaded, however, that dismissal of plaintiff's
claim for injunctive relief is appropriate at this juncture.
As plaintiff points out, the TCPA expressly authorizes
injunctive relief, and plaintiff's
allegations-particularly those directed to her months-long
efforts to stop defendants' unwanted texts-are ...