The U.S. Court of Appeals for the Eleventh Circuit recently held that the receipt of one unwanted text message in alleged violation of the federal Telephone Consumer Protection Act was not enough to allege a concrete harm that meets the injury-in-fact requirement of Article III.
In so ruling, the Eleventh Circuit noted that it was not persuaded by the Ninth Circuit’s opinion in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), which held that the receipt of two unsolicited text messages constituted an injury in fact.
Accordingly, the Eleventh Circuit reversed the ruling of the trial court that the plaintiff had standing to sue, and remanded with instructions to dismiss without prejudice.
A copy of the opinion in Salcedo v. Hanna is available at: Link to Opinion.
The plaintiff, a former client of an attorney (“defendant”), received a multimedia text message from the defendant offering a 10 percent discount on his services.
The plaintiff filed suit in the trial court as a representative of a putative class of former clients of the defendant who received unsolicited text messages in the past four years, alleging classwide violations of the TCPA.
The defendant moved to dismiss the complaint based on lack of standing, as well as for failure to state a claim against him.
The trial court disagreed, and denied the motion to dismiss. However, the trial court allowed the defendant to pursue an interlocutory appeal, and stayed its proceeding pending appeal.
On appeal, the Eleventh Circuit first discussed the TCPA. As you may recall, the TCPA prohibits using automatic telephone dialing systems to call residential or cellular telephone lines without the consent of the called party, and prohibits sending unsolicited advertisements via facsimile machine. The TCPA also authorizes the Federal Communications Commission to enact implementing regulations.
Under this rulemaking authority, the FCC has applied the statute’s regulations of voice calls to text messages.
After explaining that the plaintiff’s complaint facially stated a cause of action under the TCPA, the Eleventh Circuit next turned to whether the plaintiff had Article III standing.
As you may recall, to establish Article III standing, a plaintiff must have: (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.
Moreover, the injury in fact must be concrete. When the concreteness of an injury is difficult to recognize, courts look to “history and the judgment of Congress” for guidance.
However, “an act of Congress that creates a statutory right and a private right of action to sue does not automatically create standing.” Instead, “Article III standing requires a concrete injury even in the context of a statutory violation.”
Here, the plaintiff alleged that receiving one text message “caused Plaintiff to waste his time answering or otherwise addressing the message,” and “[w]hile doing so, both Plaintiff and his cellular phone were unavailable for otherwise legitimate purposes.” The plaintiff alleged that the message also “resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device.”
Initially, the Court observed that the Ninth Circuit ruling in Van Patten involved a nearly identical issue, and that Ninth Circuit held that the receipt of two unsolicited text messages constituted an injury in fact.
However, the Eleventh Circuit found that decision unpersuasive, and noted that in the absence of any controlling authority, it would turn its “analysis to the framework outlined by the Supreme Court in Spokeo,” which required it to “look to history and the judgment of Congress to see whether they support treating [plaintiff’s] allegations as a concrete injury in fact.”
With respect to the judgment of Congress, the Eleventh Circuit noted that Congress has said nothing about the harms from telemarketing via text message, although “Congress was concerned about ‘intrusive invasion[s] of privacy’ into the home when it enacted the TCPA.”
Still, the Eleventh Circuit disagreed with the Ninth Circuit’s conclusion in Van Patten that “Congress identified unsolicited contact as a concrete harm,” choosing instead to “focus our analysis on text messaging specifically.”
The Eleventh Circuit next turned to history for guidance. Specifically, with respect to the plaintiff’s allegations of invasion of privacy, the Court “look[ed] to the generally accepted tort of intrusion upon seclusion, which creates liability for invasions of privacy that would be ‘highly offensive to a reasonable person.’”
In comparing the plaintiff’s alleged harm to the tort of intrusion upon seclusion, the Eleventh Circuit determined that “[s]imply sending one text message to a private cell phone is not closely related to the severe kinds of actively intermeddling intrusions that the traditional tort contemplates.”
With respect to the plaintiff’s allegations of nuisance, the Eleventh Circuit compared them to traditional torts of trespass and nuisance, but found “them also to be distinct both in kind and in degree.”
As to trespass, the plaintiff “alleged no invasion of any interest in real property here.”
As to nuisance, under Florida law “mere disturbance and annoyance as such do not in themselves necessarily give rise to an invasion of a legal right,” and the plaintiff’s text message is therefore “not closely related to these traditional harms because it is not alleged to have infringed upon [plaintiff’s] real property, either directly or indirectly.”
The plaintiff also asked the Court to consider the personal property torts of conversion and trespass to chattel. However, the Eleventh Circuit was unconvinced, explaining that “although [plaintiff’s] allegations here bear a passing resemblance to this kind of historical harm, they differ so significantly in degree as to undermine his position.”
Thus, the Eleventh Circuit concluded that “history and the judgment of Congress do not support finding concrete injury in [plaintiff’s] allegations.” Accordingly, the Court held that the plaintiff’s “allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.”