Whether plaintiff had alleged a sufficiently "concrete" injury for standing under Article III.
Plaintiff Kevin Yashtinsky received a two-part text message on his cell phone from Walmart, inviting him to enroll in Walmart Pharmacy's prescription messaging program. Yashtinsky responded by filing a putative class action lawsuit against Walmart, alleging violations of the Telephone Consumer Protection Act ("TCPA") and claiming damages, injunctive relief, and any other available legal or equitable remedies. In his complaint, Yashtinsky claimed that he was not a Walmart customer, that he was not enrolled in Walmart's prescription messaging program, and that the text messages were sent en masse.36 Yashtinsky argued that the unsolicited text messages were an aggravation, a nuisance, and an invasion of his privacy. He further argued that the receipt of the messages wasted data on his cellphone, that it temporarily reduced computing power on his phone, and that it required use of a quantifiable amount of electricity.37
Walmart moved to dismiss, arguing that Yashtinsky had failed to plausibly allege Walmart's use of an automatic telephone dialing system ("ATDS"), a required element for a claim under the TCPA, and asking the court to issue a stay until the Federal Communications Commission issued a ruling on the scope of the statutory definition of an ATDS. Walmart further alleged that Yashtinsky had failed to provide evidence of a sufficient injury for standing under Article III. Walmart pointed toward the Eleventh Circuit's holding in Salcedo v. Hanna, where the court found that receipt of one text message was not a sufficient injury for standing.38 Yashtinsky argued that the Eighth Circuit's precedent in Golan v. FreeEats.com, Inc. barred Walmart's standing argument.39
The district court denied Walmart's motion to dismiss, finding that the plaintiff had sufficiently alleged both a concrete injury and the use of an ATDS. While the court did not find plaintiff's allegations regarding the waste of data and electricity to be sufficient injury by themselves, the court stated that the plaintiff's allegations as a whole were sufficient to establish a particularized and concrete injury.
The court relied on the Eighth Circuit's holding in Golan, where the circuit court had found that the receipt of two unsolicited answering machine messages constituted a "concrete injury" sufficient for Article III standing.40 The district court reasoned that "[u]nwanted text messages are, if anything, more intrusive than unanswered messages left on an answering machine, especially since individuals are more likely to have their cell phones in close proximity at all times."41 The court also cited the Eighth Circuit's reasoning in the case, finding that in passing the TCPA, Congress had elevated unsolicited messages "to the status of legally cognizable injuries."42 The court thus rejected Walmart's argument that the Eleventh Circuit's holding in Salcedo should control instead.
Thoughts & Takeaways
While the court expressed some reservations about the strength of the plaintiffff's claims in this case, the case nonetheless establishes that two unsolicited text messages may be enough to allege an injury under the TCPA. The court's decision seems to toe the line between the concrete injury required for standing under Spokeo, Inc. v. Robins, and a non-injury based solely on a statutory violation. Depending on how this case moves forward, the scope of a "concrete injury" may expand and open the door for similar class action suits based on smaller scale injuries. Read the order denying Walmart's motion to dismiss here.
36. Memorandum Opinion and Order at 1-2, Yashtinsky v. Walmart, Inc., No. 5:19-CV-5015 (W.D. Ark. Nov. 12, 2019), ECF No. 42.
37. Id. at 5.
38. Reply in Support of Defendant Walmart Inc.'s Motion to Dismiss or, in the Alternative, to Stay the Action at 2-3, Yashtinsky, No. 5:19-CV-5015 (W.D. Ark. Oct. 10, 2019), ECF No. 33 (citing Salcedo v. Hanna, 936 F.3d 1162, 1165, 1172 (11th Cir. 2019)).
39. Notice of Filing Supplemental Authority at 1, Yashtinsky, No. 5:19-CV-5015 (W.D. Ark. Oct. 15, 2019), ECF No. 36 (citing Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019)).
40. Memorandum Opinion and Order, supra note 36, at 4.
42. Id. (citation omitted).
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