Does receipt of a single unsolicited text message amount to an “injury in fact” sufficient to establish Article III standing to bring a Telephone Consumer Protection Act (TCPA) lawsuit? The Eleventh Circuit says, “no.” Salcedo v. Hanna, 2019 WL4050424 (11th Cir. Aug. 28, 2019). This is significant because over the past few years, an increasing number of TCPA class actions have been filed in federal courts in Florida, which is part of the Eleventh Circuit. Those courts are now bound to apply the standing rule articulated in Salcedo.1
In Salcedo, the court reversed the decision of the Florida district court finding that the plaintiff had standing to bring a TCPA claim, and remanded the case with instructions to dismiss the complaint. The court focused on the plaintiff’s conclusory allegations that receipt of a single text message wasted his time, made his cell phone unavailable for other pursuits and constituted an invasion of his privacy. Setting up a split among the circuits on the standing issue, the Eleventh Circuit concluded that the plaintiff’s allegations, reflecting nothing more than a momentary annoyance, did not generate the harm necessary to bring a claim in federal court.
Salcedo conflicts with the Ninth Circuit’s 2017 decision in Van Patten v. Vertical Fitness,2 holding that the receipt of two unsolicited text messages constituted an injury in fact and thus established Article III standing. The circuit spilt touches on an area in TCPA law that warrants further clarification, i.e., delineating the types of harm and the degree of harm required to establish standing to bring a TCPA claim. Unlike cell phone technology extant in 1991 when the TCPA was enacted, which was primitive compared to today’s technology, cell phones today provide users with the unbridled ability to multitask. A user can receive multiple text messages instantaneously while listening to a podcast and reading real-time news updates. Salcedo forces parties and district courts within the Eleventh Circuit to ask the questions: what is the harm in receiving a single text message? What about two text messages? Is there a harm? What about other forms of electronic communication?
Until the standard is clarified, a plaintiff’s ability to maintain a TCPA claim in federal court based on a single unsolicited text message may depend on the federal circuit in which the case is filed. The Salcedo decision presents challenges for plaintiffs to bring TCPA claims and class actions in the Eleventh Circuit based on their receipt of a single text message. In the meantime, plaintiffs may bring TCPA claims and class actions related to text messaging in circuits perceived to be more plaintiff-friendly that do not apply the Salcedo standard or reasoning necessary to establish Article III standing.
Salcedo v. Hanna3
In Salcedo v. Hanna, John Salcedo received a single unsolicited text message from his former attorney offering a discount on future services. Perhaps reflecting not the best relationship between the attorney and his former client, Salcedo filed a putative class action against the attorney for alleged violations of the TCPA. Salcedo alleged that the text message caused him “to waste his time answering or otherwise addressing the message,” which made him and his phone “unavailable for otherwise legitimate pursuits,” all of which, he claimed, “resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device.”
The attorney moved to dismiss, arguing that Salcedo lacked standing and failed to state an actionable claim. The district court denied the motion but permitted interlocutory appeal, and the appeals court reversed, holding that Salcedo’s allegations were insufficient to establish standing.
The Eleventh Circuit first examined the legislative history of the TCPA. The court noted that Congress enacted the TCPA to deal with the nuisance and invasion of privacy experienced in receiving unwanted calls on residential landlines. The court, therefore, held that receipt of one text message was “qualitatively different” from the types of harm Congress was concerned about when it enacted the TCPA, which primarily dealt with “privacy within the sanctity of the home.”4 Cell phones are used everywhere, not just at home. Cell phones’ ringers can be turned off, and the phones can be used for texting, calling, or other functions even while texts are being received.
The court then reviewed its precedent and found Salcedo’s allegations to be different from those asserted in the Eleventh Circuit’s Palm Beach v. Sarris5 case and other “junk fax” cases. In those cases, the plaintiffs established injury in fact by asserting that an unwanted fax needlessly tied up the recipient’s fax line and created unwanted costs by using the recipient’s paper, toner and ink. Salcedo made no such allegation. The court found that Salcedo’s allegations related to loss of time and unavailability failed because of the capabilities of a modern cell phone, which enables the device to receive text messages instantaneously and does not consume the device entirely like a traditional fax machine processing an unwanted fax.6
Finally, the court rejected Salcedo’s arguments that his alleged harm satisfied the standing requirement of Article III under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which generally holds that plaintiffs must allege an individualized injury to support Article III standing and not merely rely on allegations of naked statutory violations. In Spokeo, the Supreme Court instructed courts to look for “a close relationship to a traditionally redressable harm,” to support Article III standing, which broadly includes causes of action for invasion of privacy, intrusion upon seclusion, nuisance, conversion and trespass to chattel. The court reviewed each cause of action and found that Salcedo’s allegation of harm stemming from his receipt of a single text message fell short of establishing a concrete injury. The court held that the receipt of one unsolicited text message did not establish standing, and that a “brief, inconsequential annoyance” was not tantamount to an actual injury.
The court in Salcedo acknowledged that the Ninth Circuit’s decision in Van Patten reached the opposite conclusion, finding that receipt of two text messages may create injury in fact necessary to establish Article III standing. The court found the Ninth Circuit’s decision to be unpersuasive and incomplete because it failed to perform a qualitative assessment of the plaintiff’s alleged harm in the context of text messaging to support Article III standing.
Impact for TCPA Class Actions
The circuit split between the Eleventh and Ninth Circuits presents immediate implications for TCPA claims, including those asserted as putative class actions, in the Eleventh Circuit. District Courts in the Eleventh Circuit that are bound to follow the de minimis damages standard articulated in Salcedo must now scrutinize plaintiffs’ allegations on an individual, case-by-case basis, and those alleging one (or a small number) of texts will have an uphill battle establishing Article III standing.