United States District Court, N.D. Illinois, Eastern Division
REID POSTLE, individually and on behalf of all others similarly situated, Plaintiff,
ALLSTATE INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
L. Alonso United States District Judge
Reid Postle, brings this putative class action under the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, et seq., against defendant,
Allstate Insurance Company (“AIC”). Defendant
moves to dismiss. For the following reasons, Allstate
Insurance Company's Motion to Dismiss is denied.
complains that AIC violated the TCPA by using an autodialer
to make unsolicited and pre-recorded sales calls for
non-emergency purposes to the cellular phones of Postle and
others in the class Postle proposes to represent. (Dkt 1,
¶ 4). Postle alleges he received one such call. In his
complaint, Postle alleges the call harmed him by violating
his privacy, subjecting him to an annoying and harassing call
that deprived him of the legitimate use of his cell phone
while he dealt with the call. (Id. at ¶ 55). In
his response brief, Postle explains that the call harmed him
by depleting his cell phone battery, wasting his time, and
creating a risk of personal injury due to interruption and
distraction. (Dkt 25, at 9).
support of its motion to dismiss, AIC argues Postle's
allegations concerning the single phone call are insufficient
to establish a concrete injury necessary to assert Article
III standing. (Dkt 14, at 4). AIC argues that any injury from
the single call is de minimis and incapable of
conferring standing, as well as self-inflicted because Postle
chose to spend time answering the call and obtaining
information about the caller. (Id. at 7, 9). AIC
additionally argues Postle's intangible injuries are not
personal and distinct because they are shared by all victims
of TCPA violations. (Dkt 26, at 8). Lastly, AIC argues that
because Postle was not charged for the call, he cannot base
his claim upon Section 227(b)(1)(A)(iii) of the TCPA.
(Id. at 5).
Court has recently considered the relevant legal principles
in determining when, in the wake of the Supreme Court's
decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1547 (2016), a plaintiff has Article III standing to assert a
claim under the TCPA:
To establish Article III standing, “The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
at 1547 (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). The plaintiff has the burden of
establishing these elements “with the manner and degree
of evidence required at the successive stages of the
litigation.” Lujan, 504 U.S. at 561. “At
the pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice”
to state a claim. Id. To demonstrate standing, the
plaintiff's “complaint must contain sufficient
factual allegations of an injury resulting from the
defendants' conduct, accepted as true, to state a claim
for relief that is plausible on its face.”
Diedrich, 839 F.3d 588 (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) and Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
Spokeo instructs that “[t]o establish injury
in fact, a plaintiff must show that he or she suffered
‘an invasion of a legally protected interest' that
is ‘concrete and particularized' and ‘actual
or imminent, not conjectural or hypothetical.'”
Spokeo, 136 S.Ct. at 1548 (quoting with alteration
Lujan, 504 U.S. at 560). “A
‘concrete' injury must be ‘de
facto'; that is, it must actually exist.”
Spokeo, 136 S.Ct. at 1548.
“‘Concrete'” is not, however,
necessarily synonymous with ‘tangible.'”
Id. at 1549. “Although tangible injuries are
perhaps easier to recognize, . . . intangible injuries can
nevertheless be concrete.” Id. In determining
whether an intangible harm constitutes a sufficiently
concrete injury, “both history and the judgment of
Congress play important roles.” Id.
Abante Rooter & Plumbing, Inc. v. Oh Ins.
Agency, No. 15-cv-9025, 2018 WL 993883, at *1-2 (N.D.
Ill. Feb. 20, 2018).
Spokeo, a statutory violation confers Article III
standing if it causes actual harm or “‘present[s]
an appreciable risk of harm to the underlying concrete
interest that Congress sought to protect in enacting the
statute.'” Id. at *2 (quoting Groshek
v. Time Warner Cable, Inc., 865 F.3d 884, 887 (7th Cir.
2017)). The TCPA “prohibits making certain kinds of
telephonic contact with consumers without first obtaining
their consent.” Aranda v. Caribbean Cruise
Line, Inc., 202 F.Supp.3d 850, 857 (N.D. Ill.
2016). Section 227 of the TCPA, “directly forbids
[phone calls] that by their nature infringe the
privacy-related interests that Congress sought to protect by
enacting the TCPA.” Therefore, “there are not
some kinds of violations of section 227 that do not result in
the harm Congress intended to curb.” Aranda,
202 F.Supp.3d at 857. In enacting the TCPA, Congress
“elevated a harm that, while ‘previously
inadequate in law, ' was of the same character of
previously existing ‘legally cognizable
injuries'”-and a lawsuit complaining of such a harm
does not run afoul of Article III's case-or-controversy
requirement. See Susinno v. Work Out World Inc., 862
F.3d 346, 352 (3d Cir. 2017) (quoting Spokeo, 136
S.Ct. at 1549).
these principles, Postle's allegations are sufficient to
establish Article III standing. Postle's claim that his
privacy was violated as a result of the call he received-the
alleged TCPA violation by AIC-is sufficient, in and of
itself, to establish a concrete injury under Article III.
See Groshek v. Time Warner Cable, Inc., 865 F.3d
884, 887 (7th Cir. 2017); Abante, 2018 WL 993883, at
*2 (collecting cases). Moreover, Postle also alleges
particularized injury in addition to the statutory violation:
he alleges occupation of his cell phone line, distraction by
the call, and waste of time. These allegations suffice under
Spokeo. See, e.g., Abante, 2018 WL 993883,
at *2; Cholly v. Uptain Group, Inc., No. 15 C 5030,
2017 WL 449176, at *2 (N.D. Ill. Feb. 1, 2017);
Aranda, 202 F.Supp.3d at 857; Dolemba v. Ill.
Farmers Ins. Co., 213 F.Supp.3d 988, 993-94 (N.D. Ill.
2016); see also Leung v. XPO Logistics, Inc., 164
F.Supp.3d 1032, 1037 (N.D. Ill. 2015) (citing Freedom
From Religion Foundation v. Obama, 641 F.3d 803, 807
(7th Cir. 2011) (lost time is an injury in fact)).
Court is not persuaded by AIC's contention that because
Postle alleges he received only one call, he alleges at most
a de minimis injury insufficient to confer standing.
See Susinno, 862 F.3d at 351-52 (finding a concrete
injury under the TCPA based on one pre-recorded call);
Abante, 2018 WL 993883, at *3 (rejecting
defendant's contention that two calls-one that went to
voicemail and one that was answered-were at most a de
minimis injury insufficient to confer standing);
McCombs, D.P.M., L.L.C v. Cayan LLC, No. 15 C 10843,
2017 WL 1022013, at *1, *4 (N.D. Ill. March 6, 2017) (finding
a concrete injury under the TCPA based on one unsolicited
fax); Dolemba, 213 F.Supp.3d. at 991, 993-94
(holding plaintiff “alleged a particularized and
concrete injury sufficient to satisfy Article III”
based on one pre-recorded call). AIC's argument that any
injury from the call was self-inflicted is also unconvincing.
The alleged harm occurred when Postle received an unsolicited
incoming call, for non-emergency purposes, that resulted in
him answering the phone and waiting on the line for somebody
to speak. Any subsequent action, by Postle or anyone else,
does not eliminate that claimed injury.
AIC is incorrect in stating Postle's intangible injuries
are not personal and distinct because every victim of a TCPA
violation incurs that injury. A TCPA violation imparts on an
individual victim intangible harm-a violation of his or her
privacy-which is personally felt by that victim.
Although other TCPA violations impart on other victims the
same kind of harm, the harm from each call is
distinct to each victim.
contrary to AIC's argument, Postle may assert his TCPA
claim under Section 227(b)(1)(A)(iii) even if he was not
charged for the call because he lacks a limited minute cell
phone plan. As noted above, tangible, economic harm is not
required to establish standing under the TCPA. See
Aranda, 202 F.Supp.3d at 858 (“It does not matter
whether plaintiffs lack additional tangible harms. . . . To
determine whether such an injury occurred, a jury need not
determine. . . the amount of battery life or prepaid minutes
each plaintiff lost, or the charges each plaintiff incurred
for the calls.”). The ...