Repeated automated debt collection calls are a 'concrete injury' under Spokeo, federal law, judge says

By Dan Churney | Feb 14, 2017

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 harm.” 

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 determined. 

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.

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Organizations in this Story

Hogan Lovells US, LLP Keogh Law Ltd. Neal Gerber & Eisenberg LLP U.S. District Court for the Northern District of Illinois

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