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District Court Sharpens Focus on Injury-in-Fact Requirement in Text Messaging Cases

The Southern District of Florida recently dismissed a TCPA putative class action for lack of standing, finding that the plaintiff could not show he suffered a concrete injury-in-fact.  Reinforcing Eleventh Circuit precedent, the court held both that the number and infrequency of the text messages at issue was insufficient to support plaintiff’s loss of privacy, waste of time, and intrusion upon seclusion allegations and that he failed to show by a preponderance of the evidence that the texts depleted his cell phone battery or negatively impacted his data and messaging plan. Eldridge v. Pet Supermarket Inc., No. 18-22531, 2020 WL 1475094 (S.D. Fla. Mar. 10, 2020).

In Eldridge, plaintiff alleged that defendant used an ATDS to send him seven advertising and telemarketing text messages without his consent, in violation of the TCPA. Plaintiff received the first two messages after he texted defendant’s number in order to enter a raffle for free pet food. They confirmed plaintiff’s entry in the raffle, provided a link to the raffle’s rules, and stated that plaintiff consented to receive automated text messages from defendant. The next five messages, sent over approximately three months, contained coupon codes and information regarding upcoming pet adoption events. Plaintiff alleged that all seven text messages “‘invaded [his] privacy, intruded upon his seclusion and solitude, wasted his time by requiring him to open and read the messages, depleted his cellular telephone battery, and caused him to incur a usage allocation deduction to his text messaging or data plan.’” Id. at *2.

Defendant moved to dismiss, arguing that plaintiff failed to demonstrate that he suffered a concrete injury-in-fact. In considering defendant’s motion, the court first addressed whether all seven text messages could have violated the TCPA. It held that while plaintiff sufficiently alleged that the latter five constituted “unconsented ‘advertisement’ and ‘telemarketing’ in violation of the TCPA” because they either “contain[ed] coupons or discount codes” or “invitations to events” (thus suggesting they were sent “for a commercial purpose”), the first two did not qualify as advertisements or telemarketing. Id. at *4. Rather, those texts were “for ‘confirmatory’ purposes” only and “in direct response to [p]laintiff’s voluntary registration in the raffle”; they did not promote products or services or reference “shopping or purchasing,” and plaintiff consented to receiving them “by voluntarily texting [d]efendant from his cell phone to enroll in the raffle.” Id. at *3.

Even if the remaining five text messages did constitute “unconsented ‘advertisement’ and ‘telemarketing,’” however, the court found that plaintiff had not shown that they caused him to suffer a concrete injury-in-fact. Relying on the Eleventh Circuit’s decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), in which the circuit court found that receipt of a single unsolicited text message was insufficient to support a TCPA claim (and which we reported on here), the Eldridge court held that the five text messages plaintiff received over a three-month span did not result in a loss of privacy “sufficient to state a concrete injury” or to support an injury “actionable under intrusion upon seclusion.” Eldridge, 2020 WL 1475094, at *5. Furthermore, the court found that “[p]laintiff’s allegations of wasted time from opening and reading five text messages—received on five discrete occasions over a three-month period—also do not constitute a concrete injury-in-fact,” particularly where “the Complaint suggests that [p]laintiff spent no longer than seconds each time he opened and read the texts” and “[p]laintiff [did] not allege[] that he spent any time unsubscribing from the texting campaign (by replying to the texts with ‘STOP’).” Id.

Additionally, the court rejected plaintiff’s attempt to distinguish Salcedo insofar as it involved the receipt of only one text message. The court reasoned that “[t]he standing analysis in Salcedo focused on the qualitative nature of the alleged harm” rather than its quantitative nature. Id. at *6. Consequently, “[t]he Eleventh Circuit’s rationale for finding the plaintiff’s alleged loss of privacy and wasted time from receiving a single text message are not qualitatively ‘the kind of harm that constitutes an injury in fact’ applies equally here, where [p]laintiff received only one or two sporadic, short texts per month in a three-month period.” Id. (citation omitted). Because the court determined that “[p]laintiff’s alleged injuries [were] qualitatively indistinguishable from those alleged in Salcedo,” it held that they were insufficient to satisfy Article III’s standing requirement. Id.

Finally, the court held that it did not need to consider whether plaintiff’s allegations of battery depletion or negative impacts to his data plan could constitute injuries-in-fact because plaintiff failed “to show that the texts at issue consumed his phone’s battery or data and messaging plan, or caused him to incur any specific charges.” Id. at *7. Accordingly, the court granted defendant’s motion to dismiss.

The court’s decision in Eldridge both builds upon and enforces the Eleventh Circuit’s decision in Salcedo, and in doing so, appears to deepen the circuit split regarding the level of harm required to sustain a TCPA claim based on the receipt of text messages.

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About this Author

Zoe Wilhelm, Drinker Biddle Law Firm, Los Angeles, Privacy and Litigation Attorney
Associate

Zoë K. Wilhelm has a broad litigation practice, with an emphasis on cases involving privacy-based claims, corporate governance disputes, and consumer class actions. She has substantial experience representing communications companies. Zoë writes and speaks frequently about data security and privacy litigation.

Experience

 

  • Successfully defended telecommunications company in a class action asserting...

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Victoria Andrews, Drinker Biddle Law Firm, Legal Research Attorney, Philadelphia
Associate

Victoria L. Andrews assists attorneys with various stages of legal proceedings and trial preparation, including legal research, writing motions, and other legal memorandums. While in law school, she interned for the Honorable James F. Nilon, Jr. for the Delaware County Court of Common Pleas in Media, Pennsylvania.

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