Standing, or the right to bring a lawsuit, is a contentious and often complicated doctrine in the world of the Telephone Consumer Protection Act ("TCPA"). TCPA standing requires that a plaintiff allege a concrete injury beyond just a pure statutory violation. The question raised by a recent opinion from the Fifth Circuit Court of Appeals (covering federal courts in Louisiana, Mississippi, and Texas) is how much of an injury in addition to a statutory violation is necessary to satisfy TCPA standing requirements. The Eleventh Circuit Court of Appeals has held that a plaintiff needs to allege more of a concrete injury than merely "invasion of privacy" for the receipt of unwanted text messages to have standing. In a case captioned Cranor v. Five Star Nutrition, the Fifth Circuit directly disagreed, holding that a statutory violation plus an allegation of "invasion of privacy" or "nuisance" is enough to establish TCPA standing.
What did the Fifth Circuit's Cranor decision hold?
Cranor made a purchase through Defendant Five Star Nutrition's website and provided his mobile phone number as part of the transaction. Afterward, Five Star sent him an unsolicited text message offering enrollment in a rewards program. Cranor alleged that this text message violated the TCPA and settled the dispute with Five Star for $1,000. Five Star then sent Cranor another unsolicited text message, leading Cranor to file the lawsuit. The district court dismissed the case, finding that Cranor lacked TCPA standing because he alleged only an invasion of privacy for receiving a single unwanted text message.
On appeal, the Fifth Circuit reversed. The Court found that nuisance avoidance and preventing invasion of privacy are the exact types of harm that Congress intended to prevent in enacting the TCPA. In doing so, the Court directly addressed the Eleventh Circuit's opinion in Salcedo v. Hanna, which established the heightened standing requirement for Eleventh Circuit courts. Siding with the Second, Third, Seventh, and Ninth Circuits, the Cranor Court explained that the Salcedo opinion focused too narrowly on the idea that traditional tort law would not recognize receipt of a single unwanted text message as the basis for a cause of action for nuisance. In arriving at its decision, the Fifth Circuit reasoned that the Eleventh Circuit's "focus on the substantiality of an alleged harm threatens to make this already difficult area of law even more unmanageable."
Why does the Cranor decision matter to your business?
Even to attorneys, standing can seem an esoteric, remote, and sometimes abstract concept. As the difference between the Fifth Circuit's opinion in Cranor and the Eleventh Circuit's in Salcedo illustrates, the fundamental doctrine of TCPA standing (or how a plaintiff can get a ticket into federal court and stay there) differs depending on where the plaintiff brings the lawsuit. The Cranor decision reinforces the need to hire experienced attorneys who focus on the TCPA, who can help your business navigate the ever-changing landscape of TCPA law.
The Cranor opinion further solidifies the emerging national trend in most of the U.S. that a plaintiff can bring a lawsuit over a single unwanted text message without having to allege any meaningful damages or greater injury than mere nuisance. This broader view of TCPA standing underscores the need for telemarketing companies to implement and meticulously follow telemarketing industry best practices to maintain TCPA compliance. One non-compliant text message could give rise to a TCPA lawsuit or, worse yet, a TCPA class action involving hundreds of thousands of dollars in potential liability.
Hire experienced TCPA attorneys
The TCPA evolves with each new court ruling and regulatory decision. Telemarketers have enough to worry about without having to keep up with every change in the TCPA and how that might affect the way they do business.
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