February 6, 2023

Volume XIII, Number 37


February 06, 2023

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A “Malarial Pond”: Fifth Circuit Court of Appeals Considers Unwanted Texts a “Public Nuisance” that Necessarily Cause Article III Harm

Unwanted texts are akin to a hogpen or a malarial pond, according to a colorful Fifth Circuit Court of Appeals decision today.

Asked to affirm dismissal of a TCPA class action stemming from the receipt of a single text message for lack of standing, the Fifth Circuit Court of Appeals refused and concluded that unwanted text messages were akin to a “public nuisance” that has long been barred by law.

Using remarkably colorful language, the Court of Appeals deemed the sender of the unwanted marketing text as “similar to someone who illegally emits pollution or disease that damages members of the public.”

Additionally the Court found plaintiff suffered a “concrete harm” because the single unwanted text he received “deplet[ed] the battery life on [Cranor’s] cellular telephone and . . . us[ed] minutes allocated to [him] by his cellular telephone service provider.”

The decision is available here: See Cranor

While other courts have found that receipt of a single text might cause a concrete harm, Cranor appears to be the first to land on the idea that such messages pose a public nuisance–a doctrine that is usually only applied to activities that pose a health or safety risk to the public at large:

Public nuisance] includes interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond . . . ; with public morals, as in the case of houses of prostitution, illegal liquor establishments, [or] gambling houses . . . ; with the public peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration.

Perhaps a noxious pond emanating odor has some metaphorical similarities to a company blasting out unwanted text messages, but saying that they are one in the same thing is really quite the stretch. Sure if the text message caused Cranor to fall off a ladder I might see the connection in terms of “harm” caused by the “nuisance” but just because the law recognizes a doctrine called “public nuisance” doesn’t mean that everything that annoys us qualifies under this very narrow and specific doctrine.

Cranor also appears to be the first appellate court to exalt trivial harms–such as depletion of battery life–as sufficient “concrete harms” to afford federal court standing.

Translation: Spokeo is essentially dead in the Fifth Circuit.

C'est la vie.

Notably, Cranor is at odds with the Eleventh Circuit’s ruling in Hanna in which it was held that a single text does not cause the sort of qualitative harm sufficient to permit suit in federal court. Recently, however, the Hanna decision has primarily been used by Plaintiff’s lawyers to keep cases out of federal court, so the Cranor ruling may not be welcomed news for many plaintiff lawyers.

© 2023 Troutman FirmNational Law Review, Volume XI, Number 146

About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...