The Eleventh Circuit recently decided a case that raised the bar for pleading injury under the Telephone Consumer Privacy Act (TCPA), 47 U.S.C. § 227, noting its disagreement with an earlier decision from the Ninth Circuit on the same issue and creating a possible roadblock for future plaintiff classes seeking to assert claims under the TCPA.
In Salcedo v. Hanna, the Eleventh Circuit held that “receiving a single unsolicited text message” in violation of the TCPA was not a “concrete injury” sufficient to confer standing on the plaintiff. The case arose out of a text message that plaintiff John Salcedo received from his former attorney, defendant Alex Hanna, offering Salcedo a discount on Hanna’s services. According to Salcedo, receiving the text message “caused [him] to waste his time answering or otherwise addressing the message” and “resulted in an invasion of [his] privacy and right to enjoy the full utility of his cellular device.” Salcedo filed a class action complaint in the Southern District of Florida on behalf of a class of former clients of Hanna who had received similar unsolicited text messages. Salcedo demanded statutory damages of $500 per text message and treble damages of $1,500 per text message for knowing or willful violations of the statute.
The case went up to the Eleventh Circuit on interlocutory appeal. The court held that Salcedo’s receipt of a single unwanted text message from his former lawyer was not a concrete injury for the purpose of Article III. It distinguished other unsolicited, one-off communications that have sufficed to confer standing, such as a junk fax—which, the court noted, rendered the plaintiff’s fax machine “unavailable for legitimate business messages” for “a full minute” and also used the plaintiff’s paper and ink. Here, by contrast, Salcedo had failed to allege that the text message cost him any money or interfered with his use of his cellular phone for a specific amount of time. The court also observed that not only is the TCPA silent on text messages, but “the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA,” which involved more serious privacy and nuisance issues. Ultimately, the court concluded that the receipt of a single text message, while perhaps “[a]nnoying,” was “not a basis for invoking the jurisdiction of the federal courts.”
In reaching this conclusion, the Eleventh Circuit explicitly rejected the reasoning of the Ninth Circuit—the only other Circuit to directly address the issue of whether receipt of a text message, on its own, constitutes injury under the TCPA—in a similar case. Indeed, in Van Patten v. Vertical Fitness Group, LLC, the Ninth Circuit held that unwanted text messages implicate the same kinds of concerns as unsolicited calls, reasoning that the receipt of unwanted telemarketing text messages “present[s] the precise harm and infringe[s] the same privacy interests Congress sought to protect in enacting the TCPA.”
The Eleventh Circuit’s opinion in Salcedo does not impose a per se bar on TCPA claims based on the receipt of unsolicited text messages. Rather, it requires plaintiffs pleading claims under the TCPA to allege a “particular loss of opportunity,” or to allege “specifically” that the defendant’s text message cost them money or deprived them of the use of their device for a period of time. Under this framework, the question of whether an individual has suffered a concrete injury sufficient to confer standing is a highly individualized and fact-specific inquiry. As a result, as some commentators have noted, plaintiffs seeking to assert claims under the TCPA on behalf of a class may struggle to establish, for example, that the questions of law or fact common to the class members predominate, or that a class action is a superior vehicle for resolving the dispute.