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A recent decision by the Eleventh Circuit will make it more
difficult for plaintiffs to establish standing to sue under the
Telephone Consumer Protection Act (TCPA). In Salcedo v. Hanna, et al.,
Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28,
2019), the Eleventh Circuit ruled that a single text message did
not cause sufficient harm to sue in federal court. As a result,
"single text message" TCPA cases may be a thing of the
past, at least in the federal courts across the three States in the
Eleventh Circuit (Florida, Georgia, and Alabama). However, given
conflict with a ruling by the Ninth Circuit, the issue may now be
ripe for decision by the U.S. Supreme Court.
The plaintiff, John Salcedo, received a single automated text
message from his former attorney offering a ten percent discount on
legal services. Salcedo then filed a putative class action seeking
to represent a class of individuals who received similar
unsolicited text messages from the attorney and his law firm in
alleged violation of the TCPA. He sought to recover statutory
penalties of $500 to $1,500 for each text message sent. He also
alleged that the text message caused him to "waste his time
answering or otherwise addressing the message" and invaded his
privacy and "right to enjoy the full utility of his cellular
device."
The three-judge panel of the Eleventh Circuit did not buy it. In
a detailed opinion, the panel examined its own precedent, the
legislative history of the TCPA, and the history of the Article III
standing requirement, including the Supreme Court's decision in
Spokeo v. Robins, and concluded that Salcedo'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." The
court noted a text "consumes the receiving device not at
all." It also found "less congressional concern about
calls to cell phones" compared to residential landlines.
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 emphasized that its ruling was not based on "how
small or large" Salcedo's alleged injury was, but rather
on the "qualitative nature of the injury." The court
further explained that "[s]ome harms that are intangible and
ephemeral" may constitute an injury-in-fact, but Salcedo's
allegations of the harm he suffered from single text message do
not.
The court compared 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." "Annoying, perhaps, but not a basis for invoking
the jurisdiction of the federal courts."
The court held that mere annoyance is not enough for federal
jurisdiction under Article III, but suggested that allegations that
a call or text message "shattered" a plaintiff's
"domestic peace" by interrupting a family dinner might be
enough.
The Salcedo ruling appears to conflict with the Ninth
Circuit's ruling in Van Patten v. Vertical Fitness Group,
LLC, 847 F.3d 1037, 1043 (9th Cir. 2017), which found
that unsolicited calls or texts, "by their nature, invade the
privacy and disturb the solitude of their recipients." The
Eleventh Circuit found Van Patten to be
"unpersuasive," setting up a circuit split that may
result in adjudication by the U.S. Supreme Court.
What does this mean? Well, one
"chirp" may not be enough to get you into trouble in some
federal district courts, but a cacophony of harassing buzzes,
blinks, and rings likely will. The more automated text messages and
calls you make, the more likely it is that a court will find enough
injury-in-fact under the TCPA. So make sure you have sufficient
TCPA consent before sending automated text messages or calls.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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