Ever since the Eleventh Circuit’s landmark decision in Salcedo v. Hanna—holding that receipt of a single text message does not cause Article III concrete harm— the courts have been struggling with just how many texts do cause harm.

Recognizing that standing is a qualitative and not a quantitative assessment—i.e. sometimes one text will cause concrete harm and sometimes five texts won’t, depending on the circumstances—the rule will always be somewhat difficult to apply and require an assessment of the allegations in a complaint. That said, looking at rulings assessing a specific number of text messages is always valuable.

To date we have seen courts dismiss cases alleging receipt of as many as five text messages. Today we bring you the story of a court that refused to dismiss a case consisting of only two text messages.

In Williams v. Disability, DOCKET NO. 3:20-cv-00275-FDW-DCK, 2020 U.S. Dist. LEXIS 211914 (W.D.N.C.  November 12, 2020) the defendant moved to dismiss arguing that the two allegedly unwanted text messages Plaintiff received could not have caused article III harm. The Court recognized the issue as one of first impression in Fourth Circuit and stated it was more fond of the Ninth Circuit’s “unwanted texts always cause harm” approach than the Salcedo “you never know if a text causes harm until analyzed” Schrödinger’s-cat-style rule.

Importantly for Salcedo lovers, however, the Court went on to assess whether receipt of two texts was qualitatively different than receipt of one text and determined— yep. Two texts is really bad and definitely always causes harm.

So there you go. Courts outside the Eleventh continue to struggle with whether or not Hanna asserts a reasonable principle of law and, if so, how best to apply it. Unsurprisingly, courts that are more fond of the Ninth Circuit’s clean cut standing approach will also be more apt to determine that a smaller number of texts do afford standing. For courts within the Eleventh Circuit footprint, of course, Hanna is binding law- but application remains fuzzy.

Always happy to discuss.