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Appeals Court Ruling Reinstates TCPA Case, Deems Every TCPA Violation to be Concrete

The Ninth Circuit Court of Appeals has reinstated a Telephone Consumer Protection Act case after more than 300 collections calls that were made to an individual after she had revoked consent to be contacted.

A copy of the ruling, in the case of Romero v. Department Stores National Bank et al, can be accessed here. The Ninth Circuit ruling overturned a ruling at the District Court level in California that had dismissed the plaintiff’s complaint because it ruled the plaintiff lacked standing under Article III to file suit.

The Ninth Circuit ruled that the District Court erred because “it did not have the benefit” of another Ninth Circuit ruling, Van Patten v. Vertical Fitness Group. The Ninth Circuit ruled in Van Patten that any violation of the TCPA is a concrete injury, and thus eligible for Article III standing and the right to sue in federal court.

The three-judge panel of the Ninth Circuit also ruled that the defendant is not entitled to the “right to cure” provision of California’s Rosenthal Fair Debt Collection Practices Act. The defendant was unable to cure the damage already caused by making the call in the first place, the Ninth Circuit court ruled, saying that “the district court erred in granting judgment for the Banks on this claim on the basis of the mere assertion of the defense.”

ACA International offered its own assessment of the ruling, which has “important implications.”

Coupled with Van Patten, Romero lowers the bar for what constitutes a concrete injury in cases involving violations of federal statutes and made it much more difficult for defendants to challenge these cases at the pleading stage with a motion to dismiss for lack of standing. It seems as if a plaintiff does not need to allege any actual injury resulting from a statutory violation. Instead, plaintiffs apparently need only allege that a federal statute was violated to establish a legal right to sue at the pleading stage. And as the overly-broad Romero decision now stands, debt collectors may not be able to avail themselves of the Rosenthal Act’s liability shied because, since their conduct most likely has already occurred in the past, their alleged violations cannot be “cured.”

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