TCPA class actions based on the receipt of unsolicited text messages have grown more common in recent years. However, the Eleventh Circuit’s decision in Salcedo v. Hanna, may upend that trend by holding that a single unsolicited text message did not generate the harm necessary to satisfy Article III standing to sustain a Telephone Consumer Protection Act (“TCPA”) claim.
In Salcedo, the Eleventh Circuit reviewed its own precedent, the legislative history of the TCPA, and the Supreme Court’s decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016)—which concluded that plaintiffs must allege concrete injuries and could not rely on mere statutory violations—to reverse the district court’s ruling that plaintiff had standing to sue under the TCPA. The Court held that the receipt of one, unsolicited text message did not establish standing, finding that a “brief, inconsequential annoyance” was “categorically distinct from [ ] real but intangible harms.” The Court emphasized that Article III standing under the TCPA is not a quantitative assessment of the number of text messages received, but a qualitative assessment about how concrete and real the alleged harm is.
On its face, the ruling would appear to require individualized analysis of each factual situation alleged to be a violation, with potential implications for class certification. The Eleventh Circuit’s ruling also creates a circuit split with the Ninth Circuit’s Van Patten v. Vertical Fitness decision, which found that the receipt of two unsolicited text messages satisfied Article III standing. While there will inevitably be continued litigation about Article III standing under the TCPA, the broader, more significant implications will be to class certification efforts since proving discrete harm to satisfy standing across an entire class is difficult absent individualized inquiries.