Mey v. Venture Data, LLC, CIVIL ACTION NO. 5:14–CV–123 (BAILEY)

245 F.Supp.3d 771

Diana MEY, individually and on behalf of a class of persons and entities similarly situated, Plaintiff,

v.VENTURE DATA, LLC and Public Opinion Strategies, Defendants.

CIVIL ACTION NO. 5:14–CV–123 (BAILEY)

United States District Court, N.D. West Virginia, Wheeling.

Signed March 29, 2017

Anthony Paronich, Edward A. Broderick, Broderick & Paronich, P.C., Boston, MA, John W. Barrett, Jonathan R. Marshall, Ryan McCune Donovan, William J. Ihlenfeld, II, Bailey & Glasser, LLP, Charleston, WV, Matthew P. McCue, Law Office of Matthew P. McCue, Natick, MA, for Plaintiff.

Jeffrey A. Holmstrand, Grove & Delk, PLLC, Christina S. Terek, Sharon L. Potter, Spilman Thomas & Battle PLLC, Wheeling, WV, Dylan L. Jacobs, Pro Hac Vice, Michael B. Hazzard, Pro Hac Vice, Sarah C. Pomeroy, Pro Hac Vice, James W. Uthmeier, Pro Hac Vice, Kaytlin L. Roholt, Pro Hac Vice, Jones Day, Washington, DC, for Defendants.

ORDER DENYING PUBLIC OPINION STRATEGIES, INC.'S MOTION FOR SUMMARY JUDGMENT

JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE

Pending before this Court is Defendant Public Opinion Strategies, Inc.'s Motion for Summary Judgment [Doc. 121]. The Motion has been fully briefed and is ripe for decision. For the reasons stated below, the Motion will be denied.

Defendant Public Opinion Strategies, Inc. ("POS") seeks summary judgment in its favor based on several arguments. First, POS contends that the plaintiff lacks Article III standing in that she has failed to allege a cognizable injury. Second, POS argues that the plaintiff is a "professional plaintiff" and therefore sustained no injury, thereby depriving her of standing. Third, the defendant claims that it did not make the calls in question and is not vicariously liable for any calls made by defendant Venture Data. Next, POS contends that an automatic telephone dialing system ("ATDS") was not used to make the call at issue. Finally, POS argues that the Telephone Consumer Protection Act ("TCPA") is unconstitutional as applied to political speech.

This civil action was originally filed in this Court on September 9, 2014, asserting a claim under the Telephone Consumer Protection Act, 47 U.S.C. § 227, against defendant Venture Data, LLC only [Doc. 1]. On January 7, 2016, the plaintiff sought and ultimately received leave to file an amended complaint adding POS as a defendant [Docs. 49, 50 & 51]. On February 25, 2016, defendant POS filed its motion to dismiss [Doc. 59]. Briefing on the Motion was completed on March 21, 2016 [Doc. 69]. On April 4, 2016, the parties stipulated to a stay pending a decision by the United States Supreme Court in Spokeo, Inc. v. Robins, No. 13–1339 [Doc. 72].

On May 16, 2016, the Supreme Court issued its decision, Spokeo, Inc. v. Thomas Robins, 578 U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). On May 19, 2016, this Court ordered additional briefing on the effect of Spokeo [Doc. 76], and by Order entered June 30, 2016, denied a separate motion to dismiss on standing grounds [Doc. 83].

In Defendant Public Opinion Strategies, LLC's Motion to Dismiss Plaintiff's First Amended Complaint [Doc. 59], POS sought dismissal of the vicarious liability [Doc. 60]. That Motion was denied on July 26, 2016 [Doc. 85].

"The TCPA was enacted in response to ‘[v]oluminous consumer complaints about abuses of telephone technology.’ Mims v. Arrow Financial Services, LLC, 565 U.S. 368, 132 S.Ct. 740, 744, 181 L.Ed.2d 881 (2012). In Mims, the Supreme Court summarized Congress' findings on the matter:

In enacting the TCPA, Congress made several findings .... ‘Unrestricted telemarketing,’ Congress determined, ‘can be an intrusive invasion of privacy.’ TCPA, 105 Stat. 2394, note following 47 U.S.C. § 227 (Congressional Findings) (internal quotation marks omitted). In particular, Congress reported, ‘[m]any consumers are outraged over the proliferation of intrusive, nuisance [telemarketing] calls to their homes.’ Ibid. (internal quotation marks omitted). ‘[A]utomated or prerecorded telephone calls' made to private residences, Congress found, were rightly regarded by recipients as ‘an invasion of privacy.’ Ibid. (internal quotation marks omitted).

Id. at 745.

"The unanimous decision in Mims also isolated four practices that the TCPA was designed to halt:

[T]he TCPA principally outlaws four practices. First, the Act makes it unlawful to use an automatic telephone dialing system [ (‘autodialer’) ] or an artificial or prerecorded voice message, without the prior express consent of the called party, to call any ... cellular telephone, or other service for which the receiver is charged for the call. See 47 U.S.C. § 227(b)(1)(A). Second, the TCPA forbids using artificial or prerecorded voice messages to call residential telephone lines without prior express consent. § 227(b)(1)(B). Third, the Act proscribes sending unsolicited advertisements to fax machines. § 227(b)(1)(C). Fourth, it bans using automatic telephone dialing systems to engage two or more of a business' telephone lines simultaneously. § 227(b)(1)(D).

Id. at 745." Mey v. Honeywell Intern., Inc., 2013 WL 1337295, *1 (S.D. W.Va. March 29, 2013) (Copenhaver, J).

"The TCPA is a remedial statute and thus entitled to a broad construction. See, e.g. , Holmes v. Back Doctors, Ltd., 695 F.Supp.2d 843, 854 (S.D. Ill. 2010) (‘It is true that ... the TCPA is a remedial statute.’). As such, it ‘should be liberally construed and should be interpreted (when that is possible) in a manner tending to discourage attempted evasions by wrongdoers.’ Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253, 258 (4th Cir. 1950). At the same time, a remedial purpose ‘will not justify reading a provision "more broadly than its language and the statutory scheme reasonably permit." ’ Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (quoting SEC v. Sloan, 436 U.S. 103, 116, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978) )." Id.See also In re Monitronics Intern., Inc., Tel. Consumer Protection Act Litigation, 2015 WL 1964951, *3 (N.D. W.Va. April 30, 2015) (Keeley, J.) (same).

The Court will address the issues raised by POS in the order raised in the POS Motion:

I. The plaintiff has standing.

POS first argues that the plaintiff has failed to plead a particularized injury and focuses its argument on the allegations of the amended complaint. This Court has long since found the allegations of the complaint to be sufficient. Now that this case is at the summary judgment stage, the allegations of the complaint are immaterial. The issue presently is whether there is sufficient evidence to support the plaintiff's standing.

Under the TCPA, a party is prohibited from making "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service[.]" 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA creates a private right of action in which a person may bring "an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater." 47 U.S.C. § 227(b)(3)(B).

Article III, section 2 of the United States Constitution limits the judicial power of federal courts to cases and controversies. To qualify as a case or controversy, a plaintiff in federal court 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. 1540, 1547 (2016). To establish an 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." Id. at 1548.

In Spokeo, the Supreme Court addressed the injury-in-fact requirement for Article III standing. Spokeo appears to have broken no new ground. Rather, the Supreme Court confirmed the long-established principle that injury-in-fact is one of three elements required for standing. Id. at 1547. "To 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.’ " Id. at 1548. The Supreme Court held that the Ninth Circuit Court of Appeals had addressed the particularity requirement of injury in fact—the requirement that the injury "must affect the plaintiff in a personal and individual way"—but had overlooked the concreteness requirement, and had therefore failed to determine whether a consumer reporting agency's alleged violations of the Fair Credit Reporting Act's procedural requirements caused concrete injury. Id.

Spokeo confirms that either tangible or intangible injuries can satisfy the requirement of concreteness. Id. at 1549. Where the injury is intangible, Spokeo summarizes two approaches to meet this requirement. First, courts should 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. Id. As the Court noted, "the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See , e.g., Restatement (First) of Torts §§ 569 (libel), 570 (slander per se) (1938)." Id. at 1549.

Second, Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law ...." Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). It "has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." Id.

The Court also noted that merely asserting a "bare procedural violation,...