Editor’s Note: This case has two important dimensions addressed in separate blog posts. This post discusses the Article III standing issue.

As readers of TCPAWorld.com know there is an ongoing split of authority as to whether receipt of unwanted text messages cause Article III harm and, if so, how many texts qualify. Many courts hold that the receipt of even one unwanted text message affords standing. Others have held that as many as five texts are not enough to cause a “concrete injury.” The Eleventh Circuit Court of Appeals, of course, held in Hanna v Salcedo 1-2 messages do not necessarily cause harm—although it urges a messy qualitative vs quantitative analysis that is difficult (impossible?) to apply with precision.

What that really means is that when weighing whether or not to raise a standing argument under Hanna a litigator needs to consider the atmospherics of the request. The optics. Like… whether your CEO was (allegedly) personally notified of the violation and ignored it.

Well, in Persichetti v. T-Mobile United States, CIVIL ACTION NO. 1:19-CV-02424-JPB, 2020 U.S. Dist. LEXIS 150814 (N.D. Ga.  Aug. 17, 2020) the Court took a stab at applying Hanna to a case involving the receipt of three text messages and concluded the Plaintiff had sufficiently alleged concrete harm to allow the case to proceed. It probably didn’t help T-Mobile’s chances that the Plaintiff apparently directly e-mailed T-Mobile’s CEO John Legere and asked for the texts to stop before filing a TCPA suit. Eesh.

Making matters worse, the texts at issue in Persichetti were the kind of goofy marketing messages consumers hate: “Tap into T-Mobile Tuesdays! Score free stuff and great deals every week – just for being a customer.” Stuff like that.

In the old days, the Court might have found that the TCPA simply doesn’t apply to wireless carriers communicating with their own customers—the FCC actually held as much back in 1992—but the recent case law has pretty plainly held that the T-Mobile’s of the world cannot just blast their network users with marketing fluff. As noted above, the Plaintiff sent (allegedly) two separate emails to CEO Legere asking him to turn off his marketing machinery. But the text alerts (allegedly) kept coming.

Surprisingly, despite the fact that the Plaintiff was annoyed enough about the text messages to pester T-Mobile’s CEO with emails asking for the texts to stop, T-Mobile still argued to the court that the Plaintiff wasn’t actually harmed by the (allegedly) illegal blast marketing messages. Hmmm…

The Court had little trouble denying the motion. Here are the key findings:

Importantly, Plaintiff argued more than just the number of texts received. Unlike Salcedo, Plaintiff’s Complaint was not silent on the question of “wasted time,” nor was it general. In this case, Plaintiff specifically detailed the actions he took in responding to the text messages and his attempts to stop future text messages. For instance, he changed the settings on his phone in an attempt to Because Plaintiff detailed the specific actions he took after he received the text messages, this Court finds that these allegations are sufficient to show a concrete harm based on wasted time.

Tough to argue with this logic.

Pretty clear take away for defense lawyers— just because you can make an argument doesn’t make you should make an argument. Be sure to consider all of the alleged facts when assessing a standing motion. Don’t just count the text messages at issue and lob a motion at the Court.

Tune in next time.