The allegation of even an unsolicited robocall is sufficient cause to sue under the Telephone Consumer Protection Act of 1991, a federal appeals court ruled Thursday as it reinstated a putative class action against a company.
Matthew Dickson initially alleged that he had received 11 unsolicited robocalls from Houston-based Direct Energy LP in violation of the TCPA, which restricts certain telemarketing practices, including the use of any automated telephone dialing system or an artificial or pre-recorded voice, according to the ruling dated 6: e US Circuit Court of Appeals in Cincinnati i Matthew Dickson v. Direct Energy LP; Total Marketing Concepts Inc.; Silverman Enterprises LLC.
The U.S. District Court in Akron, Ohio, dismissed the lawsuit after an expert testified on behalf of Direct Energy that Mr. Dickson had only received a ringless voicemail.
The lower court held that Mr. Dickson̵
7;s receipt of the call did not constitute a concrete injury because he could not remember what he was doing when he received it; he was not charged with it; it didn’t tie his phone; and he “spent very little time” reviewing the call.In reinstating the lawsuit, a three-judge panel held that Direct Energy’s unsolicited calls “implicate Dickson’s common-law right to privacy, that is, his right to be left alone from others, including through telephone communications.”
Direct Energy “invaded Dickson’s private sphere when it placed an unsolicited prerecorded call on his cell phone,” the panel said in concluding that Mr. Dickson had successfully alleged an intangible injury and reinstated the suit.
Plaintiff attorney Brian Murphy, of Murray Murphy Moul + Basil LLP in Columbus, Ohio, said in a statement that the ruling “resolves a critical legal issue for TCPA plaintiffs” by holding Mr. Dickson had constitutional standing to pursue his lawsuit. He added that he hoped the decision would result in a verdict for the more than 2.5 million class members “who were subjected to Direct Energy’s illegal prerecorded telemarketing calls.”
Defense attorneys did not respond to a request for comment.
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