Judge Stephanie Davis, nominated by President Biden to the US Court of Appeals for the Sixth Circuit, wrote a unanimous decision that reversed a lower court judge and ruled that a consumer injured by a company’s unwanted solicitation by voicemail can proceed with a lawsuit, and a possible class action, under the Telephone Consumer Protection Act (TCPA). The May 2023 decision was in Dickson v Direct Energy L.P.
What is this Case About and What Happened in the Lower Court?
Matthew Dickson filed a class action lawsuit under the TCPA against Direct Energy. He contended that the company was using automated dialing to solicit customers for its electricity and other services without consent by placing multiple ringless voicemails (RVMs) on people’s cell phones. These unsolicited calls, Dickson maintained, tied up phone lines, cost money, and were “generally a nuisance” and an invasion of privacy, in accord with Congress’ reasons for authorizing consumers to sue companies like Direct Energy under TCPA.
During discovery, Dickson testified that he received eleven RVMs from Direct Energy. The company retained an expert witness, however, who claimed that only one of the eleven calls was from Direct Energy. Based on that evidence, the lower court dismissed the case for lack of standing, maintaining that the one call did not cause a sufficiently “concrete harm” to Dickson for him to sue, either on behalf of himself or other consumers. He appealed to the Sixth Circuit.
How did Judge Davis and the Sixth Circuit Rule and Why is it Important?
In her unanimous opinion, Judge Davis reversed the lower court. She ruled that even assuming that Dickson could prove that he had received only one RVM from Direct Energy, that was sufficient “concrete harm” to allow the case to go forward and for him to seek to vindicate his rights under TCPA.
Specifically, Davis explained, both “history and tradition” and “Congress’ judgment in enacting” TCPA warranted the conclusion that even a single unwelcome and unsolicited call was enough to give Dickson a basis for a lawsuit. Davis carefully analyzed precedent and history, and concluded that the harm alleged by Dickson “bears a sufficiently close relationship to the traditional common law tort of intrusion upon seclusion” or invasion of privacy to proceed. This included several cases, such as one opinion written by then-Judge Amy Coney Barrett, where courts had noted that even “receipt of one unwanted text” message was sufficient. Davis also found that Dickson’s alleged injury clearly “falls within the ambit” of what Congress sought to protect against under the TCPA. His ability to prove how many unwanted RVMs he actually received may be important in determining the scope of the relief he will receive and whether he can represent a class, but the court made clear that Dickson’s case could not be thrown out of court and must be allowed to proceed.
Judge Davis’ opinion is obviously important to Matthew Dickson and the class of consumers he seeks to represent who received unwanted telephone solicitations from Direct Energy. The decision is also significant, particularly in the Sixth Circuit (Ohio, Michigan, Kentucky, and Tennessee), because it makes clear the broad scope of the TCPA and the ability of consumers to use it to gain relief from telephone solicitation practices that invade their privacy, even if the corporations consider the intrusions minor. In addition, the ruling provides another illustration of the importance of promptly confirming fair-minded Biden nominees like Judge Davis to our federal courts.