On December 16, 2019, the United States Supreme Court declined to review Krakauer v. Dish Network LLC, thus leaving unresolved a circuit split regarding Article III standing under the Telephone Consumer Protection Act (“TCPA”). As you may recall, on June 3, 2019, we reported on the Fourth Circuit’s opinion in Krakauer v. Dish Network, an opinion upholding a historic, $61 million TCPA jury award in the face of an Article III standing challenge.

Dish Network’s Petition for Certiorari

Following the Fourth Circuit’s ruling, Dish Network petitioned for a writ of certiorari to the Supreme Court.  In the petition, Dish Network stated the question presented as “whether a call placed in violation of the [TCPA], without any allegation or showing of injury—even that plaintiffs heard the phone ring—suffices to establish concrete injury for purposes of Article III.”  Dish Network argued that there was no evidence that any of the 18,000 class members were even aware they received a telemarketing call.  Notably, Dish Network cited the post-Spokeo circuit split between the Eleventh Circuit and the Second, Third, Fourth, and Ninth Circuits as to the Article III concrete injury standing requirement.

Implications for Business

Business groups had hoped that the Supreme Court would take up these cases and issue a decision that would resolve the circuit split. As it stands now, consumers in the Second, Third, Fourth and Ninth Circuits can bring claims under the TCPA without showing a concrete injury beyond the mere receipt of a text message. We will continue to monitor the landscape of TCPA litigation and report on any developments. Stay Tuned.