Texas District Courts Remain Divided on Standing for Single-Text TCPA Plaintiffs
In a pair of recent opinions, two U.S. district courts in different parts of Texas expressed inconsistent views on a topic we have been following closely: whether plaintiffs who receive just a single unwanted text message can establish a concrete injury for Article III standing.
In the first case, Shields v. Dick, the Southern District of Texas held that a TCPA plaintiff who alleged the receipt of just one unwanted text message had satisfied the injury-in-fact requirement for Article III standing. According to the complaint, plaintiff received a single autodialed text message asking him to vote for the defendant in an upcoming city council election. Case No. 3:20-CV-00018, 2020 WL 5522991, at *1 (S.D. Tex. July 9, 2020). Plaintiff alleged that the unwanted text message invaded his privacy, was a nuisance, temporarily deprived him of use of his cell phone, caused his cell phone to lose battery power, and caused plaintiff to “waste precious time.” Id. The court reasoned that, because each of these alleged harms are independently cognizable, the entirety of the complaint’s allegations “[u]ndoubtedly” satisfied the injury-in-fact requirement. Id. at *5. In the court’s view, the fact that plaintiff received just one text message was “immaterial” because receiving even one automated telephone call has been found to confer standing. Id. at *4 (citing Susinno v. Work Out World, Inc., 862 F.3d 346, 351-52 (3d Cir. 2017)).
In contrast, in Cunningham v. Radius Global Solutions, LLC, the Eastern District of Texas cast doubt on the prospect that single-text plaintiffs can establish an injury-in-fact. In that case, serial TCPA litigant Craig Cunningham sued an insurance company for making an unsolicited call to his cell phone using a familiar area code that caused plaintiff to return the call. Case No. 4:20-CV-00294, 2020 WL 5518073, at *1 (E.D. Tex. Sept. 14, 2020). In support of its Rule 12(b)(1) motion, the defendant attempted to compare the missed call to a single unwanted text message, citing the Eleventh Circuit’s decision in Salcedo v. Hanna, 936 F.3d 1162, 1172-73 (11th Cir. 2019), which held that a single unwanted text message does not satisfy the injury-in-fact requirement. Id. at *4. Rejecting this premise, the court noted several differences between a single unwanted text message and a single missed call:
It only takes one glance at a text message to recognize it is for an extended warranty for a car you have never owned or a cruise you have won from a raffle you never entered. A missed call with a familiar area code, on the other hand, is more difficult to immediately dismiss as an automated message.
Id. Thus, in this court’s view, while a single missed call can confer standing, a single text message cannot. Id.
The inconsistency between the Southern and Eastern districts over whether a single text message can confer standing can partially be explained by a lack of controlling authority in the Fifth Circuit. Although, as defendant pointed out in Cunningham, at least one other district court in Texas has clarified that a single unwanted text message does not constitute an injury-in-fact. In Cranor v. 5 Star Nutrition, LLC, 2019 WL 8331601, at *3 (W.D. Tex. Nov. 27, 2019), the Fifth Circuit has not yet declared how to assess injury-in-fact in TCPA lawsuits. It remains to be seen whether the Fifth Circuit will take up the issue, and if it does, whether it will side with the Ninth Circuit’s decision in Van Patten v. Vertical Fitness, 847 F.3d 1037, 1043 (9th Cir. 2017) (finding that receipt of two text messages was sufficient to confer Article III standing) or the Eleventh Circuit’s contrary decision in Salcedo.