A Magistrate judge in Ohio has recommended that a Telephone Consumer Protection Act class-action not be dismissed because the plaintiff has standing to sue after a bank was accused of violating the statute by placing 13 calls and leaving artificial or prerecorded voice messages to the plaintiff’s cell phone for someone else.
A copy of the ruling in the case of Stamler v. Guardian Savings Bank can be accessed by clicking here.
The 13 messages were left between September 2019 and April 2021 for someone named Emily, an individual that the plaintiff alleges she does not know nor authorize to use her cell phone.
The defendant filed a motion to dismiss, arguing the plaintiff did not suffer a concrete injury and therefore does not have standing to sue. The defendant relied on precedent from the Court of Appeals for the Eleventh Circuit in making its argument, but in the Sixth Circuit — which included Ohio — the receipt of a single voicemail is enough of a concrete injury to have standing to sue, noted Judge Stephanie K. Bowman of the District Court for the Southern District of Ohio. The defendant also argued that the calls in question were not solicitations — a statement that was included in one of the voicemail messages that was left. But, again, precedent in the Sixth Circuit holds that the receipt of a single call for commercial purposes presents a concrete harm, Judge Bowman ruled.
“… Defendant cites no controlling case law that a caller’s identification of calls as ‘not a solicitation’ pre-emptively exempts them from violating the TCPA,” Judge Bowman wrote. “It is also far from clear that a commercial caller that otherwise violates the TCPA can escape civil liability if the caller can prove the calls were unintentional and/or not for the primary purpose of solicitation.’