An important question in the wake of Spokeo Inc. v. Robbins has been how the "concrete" injury requirement limits, if at all, federal jurisdiction over statutory penalty lawsuits where the plaintiff has not sustained any monetary damage. Federal circuit courts have reached differing outcomes when applying Spokeo to different statutes. See, e.g. Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329 (7th Cir. 2019) (Fair Debt Collection Practices Act), Long v. Se. Pennsylvania Transportation Auth., 903 F.3d 312 (3d Cir. 2018) (Fair Credit Reporting Act), Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018) (Americans With Disabilities Act), Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583 (7th Cir. 2016) (Real Estate Settlement Procedures Act).

On August 28, 2019, the Eleventh Circuit addressed this issue within the context of the Telephone Consumer Protection Act (TCPA) – the godfather of all "gotcha" statutes. Specifically, the court considered whether a single, unsolicited, text message could establish Article III standing for the purposes of supporting a claim for statutory penalties in Salcedo v. Hanna—F. 3d—2019 WL 4050424 (11th Cir. Aug. 28, 2019). The court held that a single text message was insufficient to confer standing, creating a potential circuit split with the Ninth Circuit's holding in Van Patten v. Vertical Fitness Group, LLC, 847 F. 3d 1037 (9th Cir. 2017) and the Second Circuit's decision in Melito v. Experian Marketing Solutions, Inc., 923 F. 3d 85 (2nd Cir. 2019).

Salcedo, Van Patten and Melito focus on the Supreme Court's decision in Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016) in arriving at their differing conclusions. Spokeo broke no new ground when it reaffirmed that Article III standing requires plaintiff to allege a concrete "injury in fact." Id. at 1548. Spokeo, however, did clarify when intangible harm could cause an "injury in fact" sufficient to confer Article III standing. Id.at 1549. To determine if the intangible harm, such as receipt of an unsolicited text message, is sufficient to establish standing, courts are to look to the "history and the judgment of congress." Id. These three decisions may set the stage for further clarification by the Supreme Court specific to the TCPA.

Salcedo v. Hanna

On August 12, 2016, plaintiff received a text message from his former attorney offering a ten percent discount on future legal services. Salcedo, 2019 WL 4050424 at *1. Plaintiff proceeded to file a complaint in the district court on behalf of a putative class alleging violations of the TCPA. Id.

The plaintiff alleged that he had standing to bring a TCPA claim because the text message "caused [him] to waste his time answering or otherwise addressing the message. While doing so, both plaintiff and his cellular device were unavailable for otherwise legitimate pursuits." Id. at *3. Additionally, the complaint alleged that this single, unsolicited, text represented "an invasion of plaintiff's privacy and right to enjoy the full utility of his cellular device." Id.

The plaintiff attempted to argue that his injury was similar to receiving an unsolicited fax message, which was deemed to confer standing under the TCPA by the eleventh circuit in Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F. 3d 1245, 1252 (11th Cir. 2015). Id.

The Salcedo court found these allegations to be "qualitatively different" from those in Palm Beach Golf. Id. at *3-4. The court noted that receiving an unsolicited fax message "consumes the receiving device entirely," and created a "fully realized opportunity cost of being unable to receive other faxes for a full minute." Id. By comparison, a text message does not "consume[] the receiving device," and a "cell phone user can continue to use all of the device's functions, including receiving other messages, while it is receiving a text message." Id.

The Salcedo court did not, however, limit its analysis to distinguishing the factual differences between faxes and texts. Rather, the Eleventh Circuit applied the framework laid out in the landmark US Supreme Court's decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which requires courts to look at the history and judgment of congress to determine if allegations made in the complaint are of the type that congress intended to constitute a concrete injury in fact. Id. at *4.

First, the court noted that text messages were not a ubiquitous form of communication when the TCPA was passed in 1991, and the statute and subsequent amendments have not added text messages to the categories of restricted telemarketing. Id. The Salcedo court's review of the statutory history of the TCPA revealed that Congress was most concerned with unrestricted telemarketing causing an intrusive invasion of the privacy of the home. Id. With this in mind, the court found that "a single unwelcome text message will not always involve an intrusion of privacy of the home in the same way that a voice call to a residential line necessarily does." Id. at *5. The court mentioned in passing that plaintiff's complaint did not allege that he was home when he received the text message, but did not explain whether, had he been home, it might have reached a different conclusion. Id. at *5.

Second, the court followed the instructions in Spokeo to determine if the type of intangible harm alleged in the complaint "has a close relationship to a harm that has traditionally been regarded as provided a basis for a lawsuit in English or American courts." Id. at *6. The Eleventh Circuit had no difficulty answering this question with a resounding no. Id. at *6-7. The court found that the text message did not implicate the kind of "severe kinds of actively intermeddling intrusions" required for torts for intrusion into privacy and nuisance, and that the harm alleged constituted nothing more that "a brief, inconsequential annoyance [] categorically distinct from those kinds of real but intangible harms." Id. at *7.

Divergence from the Ninth Circuit's Decision in Van Patten v. Vertical Fitness Group, LLC

Plaintiff asserted that the Ninth Circuit had already spoken on whether text messages create Article III standing for a TCPA claim in Van Patten v. Vertical Fitness Group, LLC, but the Eleventh Circuit rejected the Ninth Circuit's reasoning.

In Van Patten, a plaintiff brought a claim for violations of the TCPA after he received two text messages from his former gym informing him that the gym was under new management and inviting him to reactivate his membership. Id. at 1041. On appeal from an order granting defendant's motion for summary judgment, the Ninth Circuit started its analysis with an evaluation of Plaintiff's Article III standing under Spokeo. Id. at 1042-1043.

In conducting the Spokeo analysis, the Ninth Circuit found that Congress had in fact adjudged unsolicited text messages to create a concrete injury in fact. Id. at 1043. Rather than look to see if Congress specifically discussed text messages in the 1991 statute, the Ninth Circuit instead hung its hat on the broad policy of the TCPA which "establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent. Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm." Id. Once this congressional directive was found, the Ninth Circuit found that unsolicited text messages represented "the precise harm and infringe[d] the same privacy interest Congress sought to protect in enacting the TCPA." Id.

The Eleventh Circuit in Salcedo considered this analysis and found it wanting, determining that Van Patten represented a "broad overgeneralization of the judgment of Congress." Salcedo, 2019 WL 4050424 at *5. Rather than look at the broad objectives of the TCPA, the Salcedo court elected instead to "focus[] [their] analysis on text messaging specifically." Id.

Salcedo also criticized the historical analysis conducted by the Van Patten court. Id. at *7. While both decisions analyzed privacy and nuisance torts to determine a historical basis for establishing an injury in fact, the Salcedo court went a step further and evaluated the "kind and degree of harm" these torts seek to address. Id. As stated above, when analyzing this qualitative harm, the Salcedo decision found that a single text message simply did not rise to the level of wrong that privacy and nuisance torts seek to redress.

The Eleventh Circuit Did Not Address Melito

Curiously absent from the Salcedo decision is any mention of the Second Circuit's Melito decision. Melito, like Van Patten, determined that the receipt of unsolicited texts messages satisfies TCPA standing under Spokeo. Melito, 923 F. 3d at 92-93. The Second Circuit agreed that unsolicited texts constitute the same type of "nuisance and privacy invasion" constituted the same type of injury that Congress intended to remedy under the TCPA, as "the receipt of unwanted advertisements is itself the harm." Id. at 94. (emphasis in original) As such, the Melito court found no issue with the Ninth Circuit finding standing even though the only harm alleged was a statutory violation. Id.

Is Salcedo the Sign of a Turning Tide?

Salcedo is a very interesting development, but it is far too early for advertisers to break out the champagne. There will undoubtedly be further appellate challenges to the Salcedo decision, including reconsideration and en banc review, as well as a potential appeal to the Supreme Court. Melito, for its part, may be the subject of a certiorari petition as early as October 16, 2019. Nevertheless, Salcedo offers a well-reasoned analysis of the TCPA, and a strong tool with which to push back against text cases in other circuits. Of course, as a practical matter, companies should not let their guard down for an instant, and should strictly adhere to the most liberal and expansive constructions of the TCPA, regulations, and FCC guidance. Until further notice, the TCPA will remain a business killer.