On November 16, 2017, the Southern District of California dismissed TCPA claims on standing grounds, finding that the plaintiff had not alleged a concrete injury. In Selby v. Ocwen Loan Servicing, no. 3:17-cv-00973 (S.D. Cal), Judge Bencivengo concluded that the telephone calls the plaintiff allegedly received were not “telemarketing” calls and therefore did not implicate the statute. This decision is notable both because it bucks a trend of relatively easy determinations that standing exists in TCPA cases and because it raises another nuance to the standing analysis based on the type of calls received.
In Selby, the plaintiff obtained a mortgage loan that was subsequently transferred to a different servicer. After plaintiff defaulted, the new servicer (the defendant) began calling her regarding that default. The plaintiff alleged that she never provided consent to the defendant (or that, if she had, she subsequently revoked it), but ultimately received over 1,000 purportedly autodialed calls. She alleged these calls injured her by disrupting her life and preventing her from receiving other communications. Arguing that the plaintiff had not demonstrated that she had suffered a concrete injury, the defendant moved to dismiss.
The court first found Selby to be factually indistinguishable from its earlier decision in Romero v. Department Stores National Bank, 199 F. Supp. 3d 1256 (S.D. Cal. 2016). There, the court (Judge Bencivengo) held that the plaintiff could not claim any concrete injury for calls he did not answer and that the plaintiff also lacked standing for calls he did answer because he could not tie the defendant’s alleged violation (using an automatic telephone dialing system) to any alleged harm. Romero v. Dep’t Stores Nat’l Bank, 2016 WL 4184099, at *4-5 (S.D. Cal. Aug. 5, 2016). After concluding that the reasoning from Romero applied to Selby, the court turned to the plaintiff’s argument that Ninth Circuit rulings undermined Romero. Examining Van Patten v. Vertical Fitness Group, the court concluded that plaintiff was incorrect and that Romero remained viable. The court explained that in Van Patten, the Ninth Circuit concluded that Congress enacted the TCPA to protect consumers’ substantive rights in connection with telemarketing calls. Because the calls at issue in Selby were debt collection calls, Judge Bencivengo concluded, the rights Congress sought to protect in the TCPA were not implicated, and plaintiff lacked standing.
Selby is notable for at least two reasons. First, Selby bucks a trend in other courts of finding standing to pursue TCPA claims. Second, the decision demonstrates the importance of the type of call at issue to the standing inquiry. TCPA defendants (including those facing class actions) should consider whether the Selby rationale applies to their cases. Of course, the plaintiff may yet appeal the dismissal. If she does, we will be watching the proceedings before the Ninth Circuit closely.