Chirp, Buzz, Blink: How the Eleventh Circuit Brought New Life to Challenging Injury Claims in TCPA Class Actions
The Eleventh Circuit’s recent decision in Salcedo v. Hanna, brings good news to the Telephone Consumer Protection Act (“TCPA”) defense bar by breathing new life into challenges objecting to statutory injury in TCPA class action lawsuits. With thousands of these lawsuits being filed each year in federal court, TCPA class actions can be the bane of consumer-driven businesses. With each violation resulting in potential statutory damages ranging from $500 to $1500, settlements frequently reach millions of dollars. Because of the possibly staggering liability, defendants have continued to look for factual and legal defenses to ward off such claims.
One such legal defense, based upon a lack of Article III standing, is commonly asserted in lawsuits predicated on statutory rights. Standing requires the plaintiff to allege a concrete injury-in-fact—while the injury can be intangible, it must actually exist. Because the TCPA does not require actual harm to pursue statutory damages, defendants in TCPA actions frequently raise challenges to plaintiffs’ standing for failure to allege a concrete injury. These challenges, however, have largely failed.
The Salcedo case stems from the plaintiff’s receipt of a single unsolicited text message from his former attorney in 2016. The defendants moved to dismiss the plaintiff’s claims, including the putative class action, asserting the plaintiff failed to allege concrete injury and, therefore, lacked standing. The district court denied the motion but, recognizing the tumultuous nature of TCPA case law regarding standing challenges, granted defendants’ request for an interlocutory appeal.
The Eleventh Circuit, having granted defendants’ interlocutory appeal, found the plaintiff failed to allege any concrete injury, holding the “isolated, momentary, and ephemeral” injury of receiving a single, unsolicited text message falls short of the harm necessary to establish Article III standing. Judge Elizabeth Branch, writing on behalf of the three-judge panel, considered Congress’s legislative findings, noting in particular that Congress was concerned for the “sanctity of the home” and the outrage consumers feel over the proliferation of intrusive nuisance calls to their homes. However, due to the portable nature of cell phones and the ability to silence them, the Court concluded cell phones present “less potential for nuisance” and “may involve less of an intrusion than calls to a home phone.”
Additionally, the Court analyzed the history behind the common law tort of intrusion upon seclusion, the historical basis for invasion-of-privacy lawsuits. Quoting the Restatement (Second of Torts), the Court explained the tort of intrusion upon seclusion creates liability for invasion of privacy where the invasion would be “highly offensive to a reasonable person.” In other words, a plaintiff seeking recovery under this tort could establish standing only where the intrusion was “objectively serious” and “universally condemnable.” But “[t]he chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.”
The Eleventh Circuit’s opinion breaks away from the Ninth Circuit’s 2017 decision in Van Patten v. Vertical Fitness Group, which concluded the receipt of two text messages is sufficient to confer Article III standing. According to the Ninth Circuit, Congress identified unsolicited contact as a concrete harm and established the TCPA to redress that harm. Accordingly, “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients,” and thus infringe the exact privacy interests Congress sought to protect. The Eleventh Circuit vehemently disagreed, calling the Ninth Circuit’s conclusion a “broad overgeneralization of the judgment of Congress,” and thereby paving a possible path to the U.S. Supreme Court for much-needed clarity on the application of statutory standing with respect to TCPA claims.
The Eleventh Circuit precedent is likely to make waves in the ocean of TCPA litigation. While the case arises from the receipt of a single text message, the Eleventh Circuit’s language suggests a broader application. In any event, the decision may help ease the onslaught of TCPA claims against consumer-driven businesses, at least in the courts within the Eleventh Circuit, especially because the Court refused to establish a quantitative limit on how many text messages are necessary to show concrete injury. Rather, the opinion demands courts look closely at a plaintiff’s allegations in light of the statute, precedent, history, and judgment of Congress, acknowledging such inquiries naturally result in differing outcomes depending on the various inputs. Such inquiries may well run counter to class-wide generalizations relevant to the Rule 23 elements of commonality, typicality, and predominance, and may curtail future class certification of TCPA claims.
The decision also raises the bar for plaintiffs seeking to allege injury for unsolicited communications. Simply alleging a communication “resulted in an invasion of privacy” and denied the consumer the “right to enjoy the full utility of his cellular device,” without more, cannot establish the requisite injury, at least in the Eleventh Circuit. In the absence of specifics, Salcedo holds, plaintiffs cannot show concrete injury.
The Eleventh Circuit’s decision is sure to have resounding impacts on future TCPA litigation, ranging from the forums chosen by future class-action plaintiffs to an increase in defendants’ standing challenges. The split between the Ninth and Eleventh Circuits will be watched closely and it remains to be seen which other courts may join the fray.