A Chicago federal judge has
refused to dismiss a suit, brought by a woman against a debt collection
company, ruling the woman could have suffered a “concrete” harm when the
company allegedly violated the federal Telephone Consumers Protection Act, by
repeatedly phoning her after she told them to stop.
In reaching the Feb. 1 decision, U.S. District
Judge Robert Gettleman took note of the U.S. Supreme Court’s 2016 ruling in
Spokeo v. Robbins. The high court found in Spokeo plaintiffs must suffer a “concrete
injury” for certain lawsuits to go forward.
Gettleman’s ruling favored plaintiff
Julie Cholly in her putative class action suit against healthcare company Alere
Health and debt collection service Uptain. Alere is based in Waltham, Mass.,
and Uptain in Huntsville, Ala.
Uptain was hired by Alere to
collect a debt Cholly owed Alere. Uptain then called Cholly in December 2013,
using an automated dialing system. According to Cholly, she told Uptain she was
about to file bankruptcy and to not call her again. Nonetheless, Uptain kept
making automated calls, Cholly alleged.
Cholly went through with her bankruptcy filing
in in July 2014 and notice was sent to Alere, telling the company debt
collections against Cholly were on hold. However, Cholly alleged Uptain still
called her numerous times between September 2014 and May 2015. Cholly then sued
Alere and Uptain, alleging they breached the TCPA by continuing to phone her.
In turn, defendants filed a motion to dismiss the suit.
Defendants claimed Cholly failed to allege she
suffered a “concrete harm.” Defendants cited the Spokeo ruling, saying Cholly
is merely asserting a “bare procedural violation,” according to court papers.
In the Spokeo case, the nation’s high court
declared certain plaintiffs should not be allowed to sue businesses for actions
that technically violated a law, if the violation did not inflict “concrete
injury.” A number of judges have since wrestled with the question of what
constitutes a “concrete injury.”
In Cholly’s case, Judge Gettleman concluded
Uptain’s unsolicited calls were concrete. Gettleman based his decision on the
fact all the courts in the U.S. Seventh Circuit Court of Appeals – the circuit
takes in Illinois, Indiana and Wisconsin – have similarly ruled in suits
alleging violations of the TCPA.
Gettleman particularly relied on an August
2016 ruling by Chicago federal Judge Matthew Kennelly, in which Kennelly said
the TCPA “directly prohibits actions directed at consumers who will be actively
touched” by the actions. Kennelly further observed, “Congress has identified
that such unsolicited telephonic contact constitutes an intangible, concrete
Defendants also maintained the suit should be
tossed, because Cholly can’t seek claims for calls allegedly made to her before
she filed bankruptcy, as those claims are the “property of the bankrupt
estate.” They cited the doctrine of judicial estoppel, which aims to head off “perversion
of the judicial process.”
Gettleman made short shrift of this
contention, saying there was no evidence Cholly tried to “manipulate or pervert
the litigation process.”
Defendants did find traction when it came to
their other motion to prevent Cholly from pursuing the suit as a class action.
Defendants successfully argued to Gettleman that Cholly first consented to take
calls from Uptain, then withdrew consent. As a consequence, Gettleman agreed
with defendants that Cholly’s suit could not take on other parties who never
consented. Cholly’s litigation will proceed as an individual suit, Gettleman
Gettleman set a status hearing for Feb. 28.
Cholly is represented by attorneys
with the firms of Keogh Law, of Chicago, and Phillips & Phillips, of
suburban Palos Hills, and with the Consumer Advocacy Center, of Chicago.
Uptain is defended by the
Chicago firm of Hinshaw & Culbertson. Alere is defended by the Minneapolis
office of the global firm of Hogan Lovells, as well as by the Chicago firm of
Neal, Gerber & Eisenberg.