Eleventh Circuit Finds Single Text Message Insufficient to Demonstrate Concrete Harm to Confer Article III Standing Under TCPA

In Salcedo v. Hanna, 17-14077, the Eleventh Circuit Court of Appeals rejected a consumer’s allegations that his receipt of a single text message was sufficient to maintain a claim under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et al. Salcedo filed suit as representative of a putative class consisting of former clients of attorney Alex Hanna. The class was composed of individuals who allegedly received unsolicited text messages from Mr. Hanna and his law firm over a four-year period. Specifically, Salcedo alleged that he received one multimedia text message in August 2016 offering a 10 percent discount on Mr. Hanna’s services, which allegedly “caused [Salcedo] to waste his time answering” the message and deprived him of use of his cell phone “for otherwise legitimate pursuits.”

In its opinion, published on August 28, 2019, the Eleventh Circuit reversed the decision of the Southern District of Florida holding that Salcedo demonstrated standing to sue and remanded the case to the district court with instructions to dismiss the consumers’ complaint without prejudice. In so doing, the Eleventh Circuit engaged in a substantial discussion of a plaintiff’s standing to bring suit under Article III of the U.S. Constitution and the requisite injury-in-fact to maintain a claim under the TCPA.

First, the Court discussed the history of the TCPA and the requirements of Article III standing in general. The Court established that, in applying the framework analysis set forth in Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016), Salcedo failed to demonstrate a “concrete injury” sufficient to confer Article III standing to bring suit and further noting that it would consider Congressional opinion and historical precedence (as required by Spokeo) in support of this finding.

Next, the Court distinguished existing Eleventh Circuit precedent set forth in Palm Beach Golf Center-Boca Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), in which the Court found that a plaintiff’s receipt of two fax messages was sufficient to establish concrete injury under the TCPA. Specifically, the Court found that the intangible costs alleged by Salcedo related to the time wasted in responding to or otherwise addressing the offending text message was distinguishable from the tangible costs considered by the Court in Palm Beach Golf, such as the paper, ink, and toner (which have an attributable monetary value) expended in generating “junk” fax messages. Likewise, the opportunity cost discussed in Palm Beach Golf was similarly distinguishable from Salcedo’s claims: while the Palm Beach Golf plaintiff was unable to receive other fax messages for a full minute, the receipt of a single “junk” text message did not render Salcedo’s cell phone otherwise unavailable for use for any particular length of time.

The Court further noted that Congressional opinion has provided no specific guidance on text message telemarketing. In considering the underlying purpose of the TCPA itself, the Court stated that “the [legislative] findings in the TCPA show a concern for privacy within the sanctity of the home that do not necessarily apply to text messaging” because cellular devices are, by their very design, intended to be taken outside the home and are often silenced to avoid the intrusive noises of even wanted text messages. Ultimately, the Court determined that the harm alleged for a single unwanted text message was not tantamount to the “intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does.”

The Court further delved into the historical implications of the alleged harm in the context of intrusion upon seclusion. Whereas traditional tort liability would arise for “invasions of privacy that would be ‘highly offensive to a reasonable person,’” Salcedo’s allegations regarding the receipt of a single isolated text message on his cell phone fell short of creating an objectively serious and universally condemnable harm. In considering the applicability of a state law nuisance standard, the Court also noted that, under applicable Florida law, “‘[m]ere disturbance and annoyance . . . do not in themselves necessarily give rise to an invasion of a legal right.’” Consequently, the Court determined that:

Salcedo’s allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real by intangible harms. The chirp, buzz, or blink of a cell phone receiving a single text message is more akin 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.

Of particular note, the Eleventh Circuit’s opinion overtly contradicts the Ninth Circuit’s decision in Van Patten v. Vertical Fitness Group LLC, 847 F.3d 1027 (9th Cir. 2017). In stating its disagreement with its sister circuit, the Court noted that the Van Patten court stopped short of analyzing whether a single text message received outside of the home fell within the purview of Congress’ objective in protecting consumers from intrusive invasions of privacy in the home. By contrast, the Court in Salcedo determined that the Ninth Circuit’s decision improperly relied upon on a “broad overgeneralization” of Congress’ judgment on this issue with regard to the receipt of text messages, noting that “Congressional silence is a poor basis for extending federal jurisdiction to new types of harm.”

The Salcedo opinion is a decision of import with respect to both single-plaintiff cases and potential class actions. Although TCPA plaintiffs’ attorneys will argue that the Salcedo opinion is sufficiently narrow to preclude major changes to the text message litigation landscape, the decision undoubtedly creates a higher standard for precise pleading going forward. Indeed, the Court took care to characterize its assessment of Salcedo’s claim as “qualitative, not quantitative.” Thus, a fact pattern in which a consumer receives more than one text message in an otherwise analogous circumstance would not render the Court’s ruling inapplicable––rather, the lower court must sufficiently assess how concrete and real the alleged harm is to determine whether a plaintiff has established injury-in-fact to sustain a claim under the TCPA. The painstaking analysis undertaken by the Eleventh Circuit will inevitably move to the goalposts for consumers attempting to recover under the TCPA based upon minimal, intangible harm.

Likewise, the Salcedo opinion sets the stage for a much more time-consuming and invasive fact-finding inquiry into the actual injuries of putative class members and potential class representatives. By requiring district courts to engage in such substantive analysis for each aggrieved party, plaintiffs will no longer be able to establish standing solely based upon the receipt of unwanted messages. If the mere receipt of telemarketing text messages cannot alone qualify as a common concrete harm, this may ultimately prove fatal to the majority of potential putative classes.

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