One unwanted text message does not confer standing in federal court in the Eleventh Circuit — so holds the court in Salcedo v. Hanna. The case confirms that one text message is qualitatively, and jurisprudentially, different from the kind of intrusions that give rise to an Article III injury-in-fact.
The plaintiff in Salcedo claimed that he received a single unsolicited text message for a discount on legal services from his former lawyer. He brought a putative TCPA class action against the lawyer and his firm, and the defendants moved to dismiss for lack of standing. Even though the district court denied the motion, it certified its order for interlocutory appeal under 28 U.S.C. § 1292(b), and the Eleventh Circuit — which, in our experience, takes very, very few discretionary interlocutory appeals — granted the defendants’ petition for review.
The Eleventh Circuit reversed, finding that receiving a text message “is not the kind of harm that constitutes an injury in fact.” It analogized “[t]he chirp, buzz, or blink of a cell phone receiving a text message” to “walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not the basis for invoking the jurisdiction of the federal courts.” The court also distinguished junk fax cases, noting that a junk fax ties up a fax machine for “a minute or so” and imposes a tangible cost for printing the fax. Texts, on the other hand, cost nothing: “receiving a text message uses no paper, ink, or toner” and doesn’t preclude receiving other messages, texts or phone calls at the same time. While some recipients may have to pay a fee per text message received, the plaintiff did not allege that he paid any such fee. As a result, “receiving a fax message is qualitatively different from receiving a text message.”
The court also looked to Congress’s intent to support its conclusion: “We first note what Congress has said in the TCPA’s provisions about harms from telemarketing via text message generally: nothing.” It concluded that “congressional silence is a poor basis for extending federal jurisdiction to new types of harm” and distinguished text messages from unwanted telemarketing phone calls. For the Eleventh Circuit, a received text that may cause a brief alert to sound on your phone is not the same as a clanging telephone that disturbs your domestic tranquility.
The over-arching distinction that the court drew is that text messages are qualitatively different from unwanted faxes or phone calls. The word “qualitative” appears five times, and the last heading before the opinion’s conclusion is “quality, not quantity.” This quality/quantity distinction defies simple explanation. While the court memorably stated that “Article III standing is not a ‘You must be this tall to ride’ measuring stick,” much of the analysis focuses on how receiving a single text message imposes less harm than other kinds of occurrences that the Eleventh Circuit has found to confer standing.
We’d caution against bestowing landmark status on Salcedo, at least as to subject matter jurisdiction. The result is obviously a good one for defendants facing TCPA liability. But that result draws heavily on the pleaded facts of the case, and plaintiffs’ lawyers will certainly try pleading around it. It may be that sharper allegations of harm will at least let a plaintiff survive a Rule 12(b)(1) challenge to a complaint, and we’ll have to wait for the next case to see.
Salcedo is more likely to help companies facing TCPA liability at the class certification stage. The more specific allegations of harm required to create standing can only make class certification more difficult, as the unique harm facing the class representative may not be shared by the putative class as a whole — something we have previously explored for post-Spokeo standing challenges generally.
Two more things to watch: the Eleventh Circuit highlighted its disagreement with the Ninth Circuit’s decision in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017). Under Van Patten, in the Ninth Circuit, a single text message can confer Article III standing, but the Eleventh Circuit called that decision “unpersuasive” and characterized the Ninth Circuit’s reasoning as relying on “broad overgeneralizations.” This budding circuit split invites the Supreme Court to grant certiorari at some point, though likely not until other circuits join the competing camps.
In the meantime, we would expect plaintiffs to select forums in the Ninth Circuit instead of the Eleventh Circuit. The Southern District of Florida has long been a hotbed for TCPA class actions, but Salcedo could change the plaintiffs’ bar’s calculus, at least for TCPA claims based on unsolicited texts. Moreover, the Eleventh Circuit’s willingness to grant interlocutory review of this case suggests that the court was looking for an opportunity to address the jurisdictional issues arising from single-text TCPA cases. Such cases present some of the starkest disparities between the lack of harm to the plaintiff and the potential for ruinous consequences for defendants.