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One “Chirp, Buzz, Or Blink” Is Not Enough To Sue Under The TCPA

A recent decision by the Eleventh Circuit will make it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (TCPA).  In Salcedo v. Hanna, et al., Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019), the Eleventh Circuit ruled that a single text message did not cause sufficient harm to sue in federal court.  As a result, “single text message” TCPA cases may be a thing of the past, at least in the federal courts across the three States in the Eleventh Circuit (Florida, Georgia, and Alabama).  However, given conflict with a ruling by the Ninth Circuit, the issue may now be ripe for decision by the U.S. Supreme Court.

The plaintiff, John Salcedo, received a single automated text message from his former attorney offering a ten percent discount on legal services.  Salcedo then filed a putative class action seeking to represent a class of individuals who received similar unsolicited text messages from the attorney and his law firm in alleged violation of the TCPA.  He sought to recover statutory penalties of $500 to $1,500 for each text message sent.  He also alleged that the text message caused him to “waste his time answering or otherwise addressing the message” and invaded his privacy and “right to enjoy the full utility of his cellular device.”

The three-judge panel of the Eleventh Circuit did not buy it.  In a detailed opinion, the panel examined its own precedent, the legislative history of the TCPA, and the history of the Article III standing requirement, including the Supreme Court’s decision in Spokeo v. Robins, and concluded that Salcedo’s allegations about a single text message failed to state a concrete injury-in-fact necessary for federal jurisdiction.

The Eleventh Circuit explained that Salcedo’s “allegation is precisely the kind of fleeting infraction upon personal property that tort law has resisted addressing.”  The court noted a text “consumes the receiving device not at all.”  It also found “less congressional concern about calls to cell phones” compared to residential landlines.  Accordingly, the court concluded “a brief, inconsequential annoyance” is “categorically distinct from those kinds of real but intangible harms” and Salcedo failed to satisfy Article III’s injury-in-fact requirement.

The court emphasized that its ruling was not based on “how small or large” Salcedo’s alleged injury was, but rather on the “qualitative nature of the injury.”  The court further explained that “[s]ome harms that are intangible and ephemeral” may constitute an injury-in-fact, but Salcedo’s allegations of the harm he suffered from single text message do not.

The court compared the “chirp, buzz, or blink of a cell phone receiving a single text message” 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 court held that mere annoyance is not enough for federal jurisdiction under Article III, but suggested that allegations that a call or text message “shattered” a plaintiff’s “domestic peace” by interrupting a family dinner might be enough.

The Salcedo ruling appears to conflict with the Ninth Circuit’s ruling in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017), which found that unsolicited calls or texts, “by their nature, invade the privacy and disturb the solitude of their recipients.”  The Eleventh Circuit found Van Patten to be “unpersuasive,” setting up a circuit split that may result in adjudication by the U.S. Supreme Court.

What does this mean? Well, one “chirp” may not be enough to get you into trouble in some federal district courts, but a cacophony of harassing buzzes, blinks, and rings likely will.  The more automated text messages and calls you make, the more likely it is that a court will find enough injury-in-fact under the TCPA.  So make sure you have sufficient TCPA consent before sending automated text messages or calls.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IX, Number 242
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About this Author

Lisa Yun, Trial Practice, Bankruptcy, Attorney, Sheppard Mullin, Law Firm,
Associate

Lisa Yun is an associate in the Business Trial Practice Group in the firm's San Diego office.

Ms. Yun practices in the area of general business litigation and bankruptcy law.  She has experience representing financial institutions in civil and bankruptcy proceedings.  Ms. Yun has also successfully represented clients in class action claims involving the federal Telephone Consumer Protection Act (TCPA).

619-338-6541
David M. Poell Business Trial Attorney Sheppard Mullin Chicago, IL
Associate

David Poell is an associate in the Business Trial Practice Group in the firm’s Chicago office, particularly focusing on the areas of consumer privacy and class action litigation.

Areas of Practice

David represents companies in a variety of class actions, multi-district litigations and other complex commercial litigation matters in state and federal courts. He specializes in defending corporate clients in high-stakes litigation matters involving federal consumer-protection statutes, privacy torts, unfair business practices, false advertising claims and large...

312-499-6349
Paul A. Werner, Litigation Attorney, Sheppard Mullin, Law firm
Partner

Mr. Werner is a partner in the Business Trial Practice Group in the firm's Washington D.C. office.

Mr. Werner is a seasoned first-chair litigator, whose prodigious representations over the past decade have been before all levels of courts and administrative tribunals, federal and state, and spanned a wide range of complex litigation matters. These matters have run the gamut from high-stakes, “bet the company” commercial disputes to disputes involving statutory, constitutional, communications, energy, environmental, insurance, intellectual...

202-469-4910
Shannon Z. Petersen, Business Trial Legal Specialist, Sheppard Mullin
Partner

Shannon Z. Petersen is a partner in the Business Trial Practice Group in the firm’s Del Mar office and is co-chair of the firm’s consumer class action defense team and the firm’s TCPA class action defense team.

Areas of Practice

Dr. Petersen has substantial trial experience as a business litigator, including consumer class action defense. He has successfully represented clients in claims involving the federal Telephone Consumer Protection Act (TCPA), the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Acting (FCRA), the Truth in Lending...

619-338-6656
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