b'For more information, please visit www.lenderlawwatch.com or www.enforcementwatch.comher student loan account. The defendant argued thatLOOKING AHEAD TO 2020it, as the owner of the student loans, did not make anyCourts continue to consider the definition of ATDS Injury and Article III Standing in the Wake of Spokeo. In the wake of the 2016 landmark Supremecalls to the plaintiff, having hired a debt collector toin the wake of the ACA International decision, and Court ruling in Spokeo v. Robins, courts continue to consider what constitutes injury sufficient to confermake collection calls on its behalf. The district court hadwill likely continue to do so in 2020. Courts will also granted summary judgment, holding that the defendantcontinue to evaluate and consider what conduct is Article III standing in federal court. In 2019, the Fourth Circuit ruled that receipt of calls alonewithoutcould not be per se liable because it did not make the showing any specific injurywas enough to confer standing. Additionally, a circuit split developed re- calls and was not liable under an agency theory. Hen- sufficient to cause injury in order to satisfy Article derson v. United Student Aid Funds, Inc., 918 F.3d 1068III standing in TCPA cases. The Duguid v. Facebook, garding whether unsolicited text messages constitute injury sufficient to confer Article III standing. Inc. defendants petition for a writ of certiorari leaves In May, the Fourth Circuit upheld a $61 million verdict for violation of the TCPAs do not call provision,(9th Cir. 2019). an opening for the U.S. Supreme Court to clarify Eleventh Circuit Decertifies Class on Traceability andthe definitionsomething that it did not have the resulting from calls made by Satellite Systems Network (SSN), a company hired by Dish Network to mar- Predominance Grounds. In November, the Eleventhopportunity to do in the wake of the Marks v. Crunch ket its services. In so doing, the Fourth Circuit rejected the defendants argument that the plaintiff classCircuit decertified a TCPA class, holding that the plaintiffSan Diego, LLC settlementwhich may come before members could not show that they were injured under Spokeo v. Robins, because they were merelycould not adequately identify members of a class whothe court in 2020.inconvenienced by receiving the call. The court stated that accepting the defendants position wouldsigned up for a do-not-call list. The plaintiff alleged that Telecel Marketing Solutions, Inc. (Telcel)a companyThe Fourth Circuits determination of the deference due be tantamount to dismember[ing] the TCPA, converting a simply remedial scheme into a fact-intensivehired by DIRECTV to market to its customersfailed toto the FCCs administrative ruling in PDR Network LLC v. quarrel over how long a party was on the line or how irritated it felt when the phone rang.This casemaintain an internal do-not-call list to track consumersCarlton & Harris Chiropractic, Inc. also bears watching. is another example of a decision holding that a statutory violation of the TCPA alone can be enoughwho stated that they did not want to receive calls. TheThe Fourth Circuit will again rule on the required level to satisfy the Article III standing injury requirementwithout the need to make a separate showing ofproposed class consisted of all persons who receivedof deference afforded to FCC rulings, and the case may actual injury. Krakauer v. Dish Network, L.L.C., (No. 1518) (4th Cir. 2019). more than one telemarketing call, but the plaintiff didwell wind up before the Supreme Court again in 2020. not identify a way to distinguish between individualsFinally, it will be worth watching the extent to which A possible split has developed between the Eleventh Circuit and the Second and Ninth Circuit aboutwho asked to be placed on the do-not-call list andservice providers implement automatic call blockingwhether unsolicited text messages can constitute injury sufficient to satisfy Article III standing underthose who did not. The Eleventh Circuit decertified theand its effect on telephonic marketingin view of the Spokeo.The Eleventh Circuit considered the issue in August, finding that receipt of a single unwantedclass, finding that, to determine which class membersFCCs June 2019 declaratory ruling. text message was not enough to establish standing. The court classified the plaintiffs receipt of theasked Telecel to stop calling them would require indi-vidual testimony from each class member. As such, the text message as a brief, inconsequential annoyance rather than the real but intangible harm[] that isEleventh Circuit concluded that individual facts would necessary to show injury under Article III. The court concluded that receiving a single text message is predominate over common questions. Cordoba v.[a]nnoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts. Salcedo v. DIRECTV, LLC, (No. 18-12077) (11th Cir. 2019).Hanna, (No. 17-14077), 2019 WL 4050424 (11th Cir. 2019). By contrast, the Second Circuit ruled that receipt of unsolicited text messages were sufficient harm to establish standing under Spokeo. The court held that the nuisance and privacy invasion attendantWHAT TO WATCHon spam texts are the very harms with which Congress was concerned when enacting the TCPA,Courts continued efforts to interpret what an ATDS is, including the Seventh Circuits forthcoming ruling harms which have traditionally been regarded as providing a basis for a lawsuit in English or Ameri- in Gadelhak v. AT&T Services, Inc. can Courts. Melito v. Experian Marketing Sols., Inc., 923 F.3d 85 (4th Cir. 2019). In so doing, the FourthCertiorari petition in Duguid v. Facebook, Inc.Circuit joined the Ninth Circuit, which held similarly in 2017, in Van Patten v. Vertical Fitness Group, LLCFourth Circuits reconsideration of deference to FCCs administrative rulings in the wake of PDR(9th Cir. 2017).Network, LLC v. Carlton & Harris Chiropractic, Inc. Supreme Court remand. The defendants in Melito petitioned the Supreme Court for certiorari (the plaintiff in Salcedo may do theCall carrier implementation of automatic enrollment in call blocking technology in light of FCCs June same, though he has until February 5, 2020 to do so), setting the stage for the Supreme Court to weigh2019 declaratory ruling.in on the split. There is one key difference between the cases that may prove meaningfulthere was only a single text at issue in Salcedo, while both Melito and Van Patten involved multiple text messag-es. Whether that fact is determinative, time will tell, but the Supreme Court may be positioned to weigh in on the issue in 2020.38 39'