Eleventh Circuit Reverses Position on Standing, Single Text Sufficient

TCPA Connect

A unanimous en banc Eleventh U.S. Circuit Court of Appeals reversed the court’s prior precedent and ruled that the receipt of a single text message is sufficient to establish Article III standing for purposes of a Telephone Consumer Protection Act (TCPA) suit.

Susan Drazen filed a TCPA class action against GoDaddy.com in Alabama, alleging that the company used an automated telephone dialing system (ATDS) to send unwanted calls and text messages promoting its products. The parties settled and submitted the settlement to the district court for approval.

The district court, however, expressed concern that the class was defined to include recipients of a single call or text message—which the Eleventh Circuit ruled was insufficient to establish standing in Salcedo v. Hanna. The district court noted that a circuit split exists on the issue and certified the class, which included plaintiffs outside the Eleventh Circuit.

A panel of the Eleventh Circuit reversed class certification, emphasizing that “every class member must have Article III standing in order to recover individual damages.”

Drazen petitioned the court for a rehearing, and the full Eleventh Circuit agreed to consider the case, vacating the panel decision.

The en banc court then reversed the appellate panel, joining the other federal appellate courts to hold that a single text message is sufficient to establish concrete harm for Article III standing purposes.

First, the Eleventh Circuit determined that the harm from receiving such a text shares a close relationship with “harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts”—specifically, the common-law claim of intrusion upon seclusion.

“Both harms reflect an intrusion into the peace and quiet in a realm that is private and personal,” the court wrote. “A plaintiff who receives an unwanted, illegal text message suffers a concrete injury.”

GoDaddy argued, consistent with Salcedo and its progeny, that the harm from a single unwanted text lacked a close relationship to the harm of intrusion upon seclusion because an element of the common law tort requires that the privacy invasion “be highly offensive to a reasonable person” and a single unwanted, illegal text message failed to meet this bar.

But the court disagreed. The concreteness inquiry centers on whether the harms share “a close relationship,” but does not require carbon copies; instead, the new harm need only be “similar to” the old harm and the close relationship exists in kind, not degree.

“To be sure, a single unwanted text message may not ‘be highly offensive to the ordinary reasonable man,’” the court wrote. “Yet an unwanted text message is nonetheless offensive to some degree to a reasonable person.” The en banc panel noted that even GoDaddy conceded at oral argument that receiving one unwanted text message each day for 30 days would be enough to satisfy the offensiveness element.

“And that concession is the whole ballgame. After all, the argument that thirty unwanted text messages in thirty days are enough but one is not is an argument of degree, not kind. If thirty are enough, then are twenty-nine? Are twenty-eight? How about two? Drawing the line necessarily requires us to make a choice of degree.”

In addition, Congress recognized unwanted text messages and calls as a modern relative of a harm with long common law roots when it provided a cause of action in the TCPA to redress the harm, the court added.

“[W]e hold that the harm associated with an unwanted text message shares a close relationship with the harm underlying the tort of intrusion upon seclusion,” the court concluded. “Both harms represent ‘an intrusion into peace and quiet in a realm that is private and personal.’ For that reason, the harms are similar in kind, and the receipt of an unwanted text message causes a concrete injury. While an unwanted text message is insufficiently offensive to satisfy the common law’s elements, Congress has used its lawmaking powers to recognize a lower quantum of injury necessary to bring a claim under the TCPA. As a result, the plaintiffs’ harm ‘is smaller in degree rather than entirely absent.’”

To read the opinion in Drazen v. Pinto, click here.

Why it matters: The en banc Eleventh Circuit’s unanimous decision reverses prior circuit precedent that the receipt of a single phone call or text was insufficient to establish Article III standing in a TCPA lawsuit. It also brings the circuit into line with the majority of other federal appellate courts, including the Second, Third, Fourth (https://www.manatt.com/insights/newsletters/tcpa-connect/fourth-circuit-affirms-61m-award-against-dish), Sixth, Seventh, Ninth and Tenth Circuits. Moreover, it changes the dynamic in the Eleventh Circuit, where plaintiffs have filed fewer one call/text TCPA cases since Salcedo, choosing to proceed in other jurisdictions.



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