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Common Sense Reigns in 11th Circuit: A Brief Annoyance Does Not Create Standing

For the vast majority of Americans, receiving a single unsolicited text message is a mere annoyance that does not warrant a federal lawsuit.  But spurred by the language of the Telephone Consumer Protection Act (TCPA) and a series of judicial decisions nationwide, a cottage industry has sprung up around filing putative class action lawsuits centered around this sort of alleged “harm.”  This week, the 11th Circuit dealt a significant blow to such cases, finding that receipt of a single unsolicited text message in violation of the TCPA is not sufficient to establish standing.

Diverging from a ruling by the 9th Circuit and teeing the issue up for potential Supreme Court consideration, the 11th Circuit held in Salcedo v. Hanna, Case No. 17-14077, that the plaintiff’s “allegations of a brief, inconsequential annoyance” were not “real but intangible harms.”  Id. at p. 19.   The 11th Circuit relied on the Supreme Court decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), to engage in a “qualitative” rather than “quantitative” analysis.  Id.  The court concluded that receipt of a single text message is not the type of “concrete and real” harm that is sufficient to constitute “injury in fact.”  Id.  “The 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.  All told, we conclude that [plaintiff’s] allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.”  Id.

That it was necessary for a U.S. Circuit Court of Appeals to weigh in on such a seemingly common sense issue is probably surprising to some who have not followed the work done by the TCPA plaintiffs’ bar over the years.  But TCPA plaintiffs have had great success in turning single unsolicited text messages into multimillion dollar settlements.  The Salcedo decision, if adopted widely, would force plaintiffs to plead a specific concrete injury arising from the receipt of an unsolicited text message (or similar trifles) —which may be difficult (if not impossible) to do.  Regardless, the Salcedo standard should doom many TCPA putative class actions because a concrete injury would need to be shown as to each class member.

© 2020 Vedder PriceNational Law Review, Volume IX, Number 247


About this Author

Blaine C. Kimrey, media defense Litigation, Vedder Price Law Firm Chicago Office

Blaine C. Kimrey is a Shareholder in the Litigation practice area in the firm’s Chicago office.

A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property,...

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Bryan Clark Media & Privacy Law  litigation Vedder Price Law Firm Chicago

Bryan Clark is an Associate at Vedder Price and a member of the Litigation group in the firm’s Chicago office.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right of publicity litigation, data breach response, FOIA issues, reporter’s privilege issues and prepublication review.

Mr. Clark’s other representative work includes drafting successful dispositive motions in right of publicity and invasion of privacy cases, arguing successful motions to quash on behalf of media entities facing subpoenas, defeating motions for preliminary injunction in intellectual property litigation, and advising advertising and marketing clients on compliance issues. He presents on issues related to digital privacy and data breach before a national audience, such as the ABA Annual Meeting in 2013.

Mr. Clark is a member of the Trial Bar for the Northern District of Illinois and has first-chair trial experience in federal court. As a litigator, Mr. Clark has been involved in a broad range of matters in addition to media and privacy, including topics as diverse as loan enforcement and foreclosure, consumer fraud, environmental, construction, and insurance law. He also has handled a variety of pro bono engagements, including work for nonprofit media entities, representation of an Illinois prisoner with multiple sclerosis, and Section 1983 civil rights litigation

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