The Eleventh Circuit Holds That Receipt of a Single Text Does Not Satisfy Article III
The Eleventh Circuit recently held that receiving a single unsolicited text message does not amount to the harm required to sustain a Telephone Consumer Protection Act (TCPA) claim. In Salcedo v. Hanna, John Salcedo brought a TCPA claim against his former attorney after receiving one multimedia text message offering a ten percent discount on future legal services. Salcedo filed suit in district court as the representative of putative class members of former Hanna clients who received similar texts. The district court denied the defendants’ motion to dismiss for lack of standing. In an unusual step, the Eleventh Circuit agreed to hear the case on interlocutory appeal, and reversed the district court’s decision. In so doing, it created a circuit split on Article III standing and a significant hurdle for certifying TCPA class actions in the Eleventh Circuit.
After first addressing the history of the TCPA and Article III standing, the court turned to the Plaintiff’s allegations. The court noted that Salcedo merely alleged that receiving the single text message “caused [him] to waste his time answering or otherwise addressing the message”; that while doing so, he and his phone here “unavailable for otherwise legitimate pursuits”; and that the text was an invasion of his privacy and his right to “enjoy the full utility of his cell phone.” The Eleventh Circuit reasoned that these allegations were qualitatively different from those in two other cases where it had held that the plaintiff had established injury in fact. In those case, the plaintiff had alleged a tangible harm (the cost of paper and ink) not alleged by Salcedo (he did not allege that the text cost him anything) or had alleged an intangible harm (deprivation of the ability to receive work-related communications during a one minute-long fax) not applicable to texts—“a cell phone user can continue to use all of the devices functions, including receiving other messages, while it is receiving a text message.”
Next, the court looked to the legislative history of the TCPA. It noted that the TCPA itself is silent on the topic of text messages (because text messages did not exist when the statute was enacted), making Congress’s intent in covering text messages under the TCPA “ambivalent at best.” The court also rejected Salcedo’s reliance on the harms that Congress did identify—“intrusive invasion[s] of privacy into the home”—because Salcedo was not at home when he received the text and cell phones are portable.
The Salcedo court acknowledged that its ruling conflicted with the Ninth Circuit’s January 2017 decision in Van Patten v. Vertical Fitness (which had “quoted many of these same [Congressional] findings”), and reasoned that the Ninth Circuit reached its contrary conclusion as a result of “broad overgeneralization of the judgment of Congress.”
Finally, the court turned to the historical causes of action for Salcedo’s alleged harms—the torts of invasion of privacy, intrusion upon seclusion, nuisance, conversion, and trespass to chattel—and rejected Salcedo’s comparison of his alleged injuries to the injuries that could sustain such claims, explaining that a thorough analysis of these historical torts “reveals significant differences in the kind and degree of harm they contemplate providing redress for.” And, again, the Eleventh Circuit acknowledged that the Ninth Circuit had reached a contrary conclusion, but reasoned that the Ninth Circuit’s analysis was a “one-sentence review of history.”
The court ultimately described its assessment as “qualitative, not quantitative”—it was not focused on the size of Salcedo’s alleged harm, but rather on the fact that the alleged harm was no harm at all for Article III purposes. It was “not the kind of harm that amounts to injury in fact.”
The Salcedo decision will have a significant impact on class certification in the Eleventh Circuit. Now that merely receiving a text is not enough to establish Article III standing, potential class members will need to identify a concrete harm caused by the receipt of an unwanted text message, and that harm will vary from text to text and person to person. This inherent variance could make class certification all but impossible in TCPA suits, and will likely result in the plaintiffs’ bar pursuing rehearing and, if that is unsuccessful, relief from the Supreme Court. While the Southern District of Florida has become an increasingly popular forum for TCPA suits, the Salcedo decision (in combination with the Ninth Circuit’s decisions in Marks v. Crunch San Diego and Duguid v. Facebook regarding the definition of an ATDS) may have the effect of driving more litigation to the Ninth Circuit, where the standard for pursuing a TCPA claim—at least for now—is different.