A district court in the Northern District of California District Court granted a plaintiff’s motion for reconsideration, finding it actually possessed subject matter jurisdiction based on the Ninth Circuit’s recent ruling in Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017).  Brinker v. Normandin's, No. 5:14-cv-03007-EJD, 2017 U.S. Dist. LEXIS 61312 (N.D. Cal. Apr. 21, 2017)

The putative class action arose out of allegations that defendants Normandin’s and OneCommand, Inc. (“OneCommand”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A), by placing automated calls to the class members’ phones.  Id. at *2.  On February 17, 2017, the Brinker court issued a ruling granting OneCommand’s motion to dismiss the action on the grounds that the plaintiffs had failed to establish Article III under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which held that plaintiffs must show concrete harm and not rely on mere statutory violations.  Id.

After OneCommand’s motion to dismiss was fully briefed, the Ninth Circuit issued its opinion in Van Patten finding that an ex-gym member who allegedly received spam texts from his former gym suffered a concrete injury.  Brinker, 2017 U.S. Dist. LEXIS 61312, at *4.  The Ninth Circuit acknowledged that “Article III standing requires a concrete injury even in the context of a statutory violation,” but it decided that “a violation”—any violation—“of the TCPA is a concrete, de facto injury.”  Id. at *5 (quoting Van Patten, 847 F.3d at 1043).  “A plaintiff alleging a violation under the TCPA ‘need not allege any additional harm beyond the one Congress has identified.’”  Brinker, 2017 U.S. Dist. LEXIS 61312, at *5 (quoting Spokeo, 136 S. Ct. at 1549) (emphasis in original).

Accordingly, in Brinker, when ruling on the plaintiffs’ motion for reconsideration, the court found that under Van Patten, the plaintiff had standing because allegations of unsolicited and automated calls to the plaintiffs in violation of the TCPA were sufficient to show that the plaintiffs had suffered a concrete injury.  Brinker, 2017 U.S. Dist. LEXIS 61312, at *5-6.