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Unfair and Deceptive Acts and Practices: 12.3.3.9.5 Pain and suffering damages may be even more broadly available in UDAP cases

In a number of states, courts award pain and suffering damages in UDAP cases even where there is no physical injury or intent to deceive.266 Louisiana allows damages for mental anguish and humiliation in UDAP cases, simply as a component of actual damages.267 Thus, actual damages are recoverable for humiliation and mental anguish for the intentional filing of a suit in the wrong venue.268 Some Illinois decisions hold that emotional distress qualifi

Consumer Class Actions: 12.4 Appeals After Individual Settlement, Judgment, or Dismissal

Concerns about justiciability or waiver may arise when the named plaintiff’s individual claims are in some way mooted, satisfied, or dismissed after a denial of class certification—and the named plaintiff seeks to appeal the denial of certification.115 These concerns are similar, but not identical, to those presented when an offer of judgment or settlement is made to the individual class representative prior to a decision on class certification, or even before a motion to certify the class has been filed.

Federal Deception Law: 7.3.6 Joint Venture, Aiding and Abetting, and Liability of Individuals, Parent Companies, Successor Corporations, and Subsidiaries

The FCC did not address joint venture liability in its 2013 DISH Network ruling.202 However, joint venture liability is entirely consistent with the common law agency principles it articulated in that ruling, so it is reasonable to conclude that a franchisor, parent company, or remote seller may be liable for TCPA violations if it is engaged in a joint venture with its franchisee, subsidiary, or dealer.203

Federal Deception Law: 7.3.7 Federal Contractors; Governmental Units and Officers

In early 2016, the Supreme Court held that although the United States and its agencies have immunity from TCPA suits,210 a federal contractor that violated the TCPA did not have derivative immunity.211 The contractor had been hired to recruit people to join the Navy. The contractor sent text messages to people who had not opted in to receive them, contrary to its agreement with the Navy.

Federal Deception Law: 7.4.2.2.1 The Ramirez holding

TransUnion L.L.C. v. Ramirez251 arose when TransUnion, one of the “Big Three” nationwide consumer reporting agencies (CRAs or credit bureaus), issued a report identifying a car buyer, Sergio Ramirez, as a potential terrorist. TransUnion had done so based solely on the fact that the plaintiff had the same first and last name as a person on the federal government’s terrorist watch list. TransUnion did not check any other identifying features, such as Ramirez’s middle initial, date of birth, or address.

Federal Deception Law: 7.4.2.2.3 When does harm have a close relationship to harm traditionally recognized as a basis for a lawsuit?

Ramirez provides more detail about one of the two alternative tests for Article III standing articulated in Spokeo—that the harm the plaintiff suffered has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.258 Ramirez states that Article III “does not require an exact duplicate in American history and tradition.”259

Federal Deception Law: 7.4.2.2.4 The role of Congress’s judgment

Spokeo very clearly holds that “the judgment of Congress” plays an “important role[]” in determining whether an intangible injury is concrete.265 The decision holds that “because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.”266 It quotes with approval two of its earlier decisions, holding that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto

Federal Deception Law: 7.4.2.2.5 Procedural vs. substantive requirements—does it make a difference?

The Spokeo decision dwelled on a characterization of the case’s FCRA violations as merely “procedural.” Although the Spokeo Court did not clearly indicate the role of the distinction between procedural and substantive violations, many decisions have given meaning to this distinction, often by attributing greater weight or conclusive weight to Congress’s judgment in enacting a statute that creates substantive protections and grants a private remedy for violations.276

Federal Deception Law: 7.4.2.2.8 Private rights vs. public rights

In Spokeo, Justice Thomas, while concurring in the majority opinion, proposed a somewhat different conceptual framework, founded on a distinction between “private rights” and “public rights.” Quoting Blackstone, he defined private rights as those “belonging to individuals, considered as individuals,” including rights of personal security, property rights, and contract rights.

Federal Deception Law: 7.4.3.2 The TCPA’s Prohibitions Are Substantive Rather Than Procedural

In Spokeo, the Supreme Court stressed that the statutory rights at issue there were “procedural” rather than “substantive,” and much of the opinion is framed as addressing the Article III standing principles that apply to procedural rights.309 The Court’s more recent decision in Ramirez310 does not place any emphasis on this distinction, but deals only with violations that the Court has previously characterized as procedural.311 S

Federal Deception Law: 7.4.3.3.2 Congress clearly identified invasion of privacy as a legally cognizable harm

Even if invasion of privacy were not a harm recognized as redressable through a common law tort claim, it may meet the requirement of concreteness as interpreted by Spokeo because Congress so clearly identified it as a legally cognizable harm.332 As the majority noted in Spokeo: “[B]ecause Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.

Federal Deception Law: 7.4.3.4 The Intrusion upon and Occupation of the Capacity of the Consumer’s Phone As a Basis for Article III Standing

A second type of intangible harm caused by unwanted robocalls is intrusion upon and occupation of the capacity of the consumer’s cell phone. The harm recognized by the ancient common law claim of trespass to chattels—that is, the intentional dispossession of a chattel, or the use of or intermeddling with a chattel that is in the possession of another341—is a close analog for this TCPA violation.

Federal Deception Law: 7.4.3.7 Outlier Decisions

A few decisions find that recipients of unwanted calls, text messages, or faxes did not have Article III standing, but most arise under unique facts or in a unique procedural posture. In an unreported decision, Davis Neurology v. DoctorDirectory.com L.L.C.,385 the defendant removed a claim under some unidentified section of the TCPA to federal court and then argued that the federal court lacked jurisdiction because the plaintiff did not have Article III standing.