Expect Focus Life Insurance, March 2018

Court Rejects Insurer’s Spokeo-Based Standing Challenge to TCPA Action

Insurance   |   Financial Services Regulatory   |   Insurance   |   Life, Annuity, and Retirement Solutions   |   March 31, 2018

In a February 20 ruling, the Northern District of Illinois cleared the way for a plumbing company’s putative class action against Allstate Insurance Company and an insurance agency co-defendant by denying the defendants’ motions to dismiss, which were inspired by recent U.S. Supreme Court decisions, including Spokeo v. Robins in 2016. The plaintiff in Abante Rooter & Plumbing, Inc. v. Oh Ins. Agency alleged that the defendants violated the Telephone Consumer Protection Act (TCPA) when they placed two phone calls to it: one went to voicemail, and a company employee answered the other. The company’s purported injuries were the statutory violation as well as business interruption, annoyance of the company’s principal, and invasions of privacy. The defendants moved to dismiss on two grounds: lack of standing because the plumbing company had not alleged sufficiently concrete injuries under Spokeo; and mootness based on a 2016 Supreme Court ruling in Campbell-Ewald v. Gomez, a TCPA action, because Allstate had offered a settlement and deposited the money into an escrow account.

First, the district court found the plumbing company suffered sufficiently concrete injuries and thus had standing to sue. It noted that several courts in the Seventh Circuit held, post-Spokeo, that alleged TCPA violations satisfied Article III’s requirement for concrete injury-in-fact. Under Spokeo, a statutory violation can constitute sufficient injury where the violation risks harm to the "underlying concrete interest" Congress intended to protect in the statutory enactment. Not only did the complaint allege harm to the interest Congress intended to protect in the TCPA, the court concluded, but the plumbing company also alleged injuries of business interruption, invasion of privacy, and annoyance of an employee which were in addition to the pure statutory violation.

Second, the court rejected the defendants’ contention that, based on Campbell-Ewald, Allstate’s proffer of a settlement and deposit of funds into an escrow account mooted the claims. In Campbell-Ewald, the Supreme Court held that an unaccepted Rule 68 offer of judgment by a defendant cannot moot a putative class action. And subsequent to the parties briefing the mootness issue here, the Seventh Circuit weighed in. As the district court pointed out, "the Seventh Circuit has issued a series of decisions" extending Campbell-Ewald’s reasoning against forced settlements to circumstances similar to this case, including a reversal of a district court decision Allstate heavily relied upon in its briefing. Accordingly, the district court held that Allstate’s "offer of judgment and deposit of funds into an escrow account" did not moot the claims. Additionally, the facts here encouraged this specific holding because the escrow agreement’s terms restricted the bank’s disbursement until a court order directed it to do so, an impossible outcome because mooting the claims would deprive the court of any jurisdiction to enter a merits judgment.

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