For the vast majority of Americans, receiving a single unsolicited text message is a mere annoyance that does not warrant a federal lawsuit. But spurred by the language of the TCPA and a series of judicial decisions nationwide, a cottage industry has sprung up around filing putative class action lawsuits centered around this sort of alleged “harm.” Last week, the 11th Circuit dealt a significant blow to such cases, finding that receipt of a single unsolicited text message in violation of the TCPA is not sufficient to establish standing.
Diverging from a ruling by the 9th Circuit and teeing the issue up for potential Supreme Court consideration, the 11th Circuit held in Salcedo v. Hanna, Case No. 17-14077, that the plaintiff’s “allegations of a brief, inconsequential annoyance” were not “real but intangible harms.” Id. at p. 19. The 11th Circuit relied on the Supreme Court decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), to engage in a “qualitative” rather than “quantitative” analysis. Id. The court concluded that receipt of a single text message is not the type of “concrete and real” harm that is sufficient to constitute “injury in fact.” Id. “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. All told, we conclude that [plaintiff’s] allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.” Id.
That it was necessary for a U.S. Circuit Court of Appeals to weigh in on such a seemingly common sense issue is probably surprising to some who have not followed the work done by the TCPA plaintiffs’ bar over the years. But TCPA plaintiffs have had great success in turning single unsolicited text messages into multimillion dollar settlements. The Salcedo decision, if adopted widely, would force plaintiffs to plead a specific concrete injury arising from the receipt of an unsolicited text message (or similar trifles) —which may be difficult (if not impossible) to do. Regardless, the Salcedo standard should doom many TCPA putative class actions because a concrete injury would need to be shown as to each class member.
We will continue to watch this case with great interest; please keep an eye out for more updates.