A recent decision by the Eleventh Circuit federal court of appeals adds another arrow to class action defendants’ quiver by making it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (“TCPA”). The appellate court ruled that a single text message did not cause sufficient harm to sue in federal court.
In Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), the plaintiff, John Salcedo, received a single form text message from his former attorney offering a discount on the attorney’s services. After receiving the message, Salcedo filed suit in the district court alleging that the text message violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii). Salcedo sought to prosecute the suit on behalf of a putative class of the attorney’s former clients who also received unsolicited text messages from the attorney in the past four years. He alleged that the text message caused him to “waste his time answering or otherwise addressing the message” and infringed upon his “right to enjoy the full utility of his cellular device” and sought statutory penalties of $500 to $1,500 for each text message as damages.
After the defendant unsuccessfully moved to have the case dismissed for lack of standing and failure to state a claim, the district court permitted the defendant to file an interlocutory appeal recognizing that the question of standing “involves a controlling question of law as to which there is a substantial ground for difference of opinion.” The three-judge panel of the Eleventh Circuit did not buy the plaintiff’s standing arguments.
In a detailed opinion, the panel examined its own precedent, the legislative history of the TCPA, and the history of Article III’s standing requirement. Any discussion of standing would not be complete without an examination of the Supreme Court’s 2016 decision in Spokeo v. Robins. At the conclusion of this examination, the appellate court concluded that the plaintiff’s allegations about a single text message failed to state a “concrete injury-in-fact” necessary for federal jurisdiction.
The Eleventh Circuit explained that Salcedo’s “allegation is precisely the kind of fleeting infraction upon personal property that tort law has resisted addressing.” Accordingly, the court concluded “a brief, inconsequential annoyance” is “categorically distinct from those kinds of real but intangible harms” and Salcedo failed to satisfy Article III’s injury-in-fact requirement. The court made certain to emphasize that its ruling was not based on “how small or large” the alleged injury was, but rather on the “qualitative nature of the injury.” The court further explained that even “some harms that are intangible and ephemeral” may constitute an injury-in-fact, but the harm suffered by a single text message does not.
The court analogized the “chirp, buzz, or blink of a cell phone receiving a single text message” to “walking down a busy sidewalk and having a flyer briefly waived in one’s face.” While conceding that the unwanted text may be “annoying,” they found that the annoyance did not provide a basis for invoking the jurisdiction of the federal courts.
The Salcedo ruling appears to conflict with the Ninth Circuit’s 2017 ruling in Van Patten v. Vertical Fitness Group, LLC, which found that unsolicited calls or texts, “by their nature, invade the privacy and disturb the solitude of their recipients.” The Eleventh Circuit acknowledged the Ninth Circuit’s holding in Van Patten but ultimately found it to be “unpersuasive,” setting up a split that may be resolved finally by the U.S. Supreme Court.
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