10 September 2019

11th Circuit Rules Single Text Message Not Sufficient for Article III Standing

Creating a circuit split, the U.S. Court of Appeals for the Eleventh Circuit has held that receiving a single unwanted text message is not enough to confer standing, even if the text violated the federal Telephone Consumer Protection Act (TCPA). The court disagreed with a Ninth Circuit ruling that reached the opposite conclusion in 2017. In so doing, it gave new life to an argument defendants may use to fend off class actions under the TCPA.

For any lawsuit filed in federal court, the plaintiff must have standing under Article III of the U.S. Constitution. Plaintiffs must show, among other things, that they suffered a concrete and particularized injury. Some federal statutes, including the TCPA, confer a right to sue, but Congress’s say-so does not necessarily suffice under Article III. The Supreme Court reiterated that point in its 2016 ruling in Spokeo, Inc. v. Robins, which addressed standing under the Fair Credit Reporting Act.

In the wake of Spokeo, defendants in TCPA cases redoubled their efforts to challenge plaintiffs’ standing under Article III. They have met limited success: Some courts have found that the interest in not receiving unwanted phone calls is significant enough to confer standing. Extending this reasoning to the text message context, the Ninth Circuit held in Van Patten v. Vertical Fitness Group, LLC that receiving just two unsolicited text messages conferred standing.

The Eleventh Circuit split from the Ninth Circuit in Salcedo v. Hanna. The plaintiff in Salcedo filed a class action under the TCPA after an attorney sent him a text message offering a discount on legal services. Reversing the district court, the Eleventh Circuit rejected plaintiff’s assertion that receiving the message cost him time and tied up his phone. These allegations, the court held, were “qualitatively different” from receiving a single junk fax (also prohibited by the TCPA, and which the Eleventh Circuit has previously held sufficient to confer standing). With older fax machines, an incoming fax can prevent the machine from receiving other faxes, and printing the fax costs paper and toner.

The Eleventh Circuit noted that Congress said nothing about text messages in the TCPA and rejected the Ninth Circuit’s contrary reading as a “broad overgeneralization” of the TCPA’s goals. Receiving a single text message, the Eleventh Circuit held, is “isolated, momentary, and ephemeral”; it does not add up to the type of concrete injury required by Article III. The court also disagreed with the Ninth Circuit’s analogy between receiving text messages and traditional privacy torts, finding “significant differences in the kind and degree of harm” between the two. The “brief, inconsequential annoyance” of a text message, the Eleventh Circuit held, is “not a basis for invoking the jurisdiction of the federal courts.”

A concurring judge in Salcedo took pains to note that the opinion leaves open the question of whether a plaintiff who received more than a single text message might have standing. Even with that caveat, Salcedo injects new life into an argument defendants have invoked to defend claims under the TCPA. The Eleventh Circuit’s opinion applies whether the case is brought on behalf of an individual or as a putative class action, but its effect will likely be felt more keenly in the latter arena, as the exposure in a class action can be exponentially greater than it is in an individual case.

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