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Eleventh Circuit Dismisses TCPA Class Action In Which Plaintiff Received A Single Text Message

a single text message

In an important ruling, the Eleventh Circuit Court dismissed a Telephone Consumer Protection Act (TCPA) class action for lack of standing in a case where the plaintiff received only a single text message. The case, Salcedo v. Hanna, No. 17-14077 (11th Cir. Aug. 28, 2019), follows in the footsteps of the Supreme Court’s 2016 Spokeo v. Robins decision.

In the Salcedo case, the plaintiff tried to argue that receiving and opening a single text wasted his time, invaded his privacy, and made both himself and his phone unavailable for other purposes. While this line of reasoning had been accepted by courts in the years since Spokeo v. Robins, the Eleventh Circuit rejected it and, in the course of doing so, explicitly drew a contrast with the Ninth Circuit’s ruling in 2017’s Van Patten v. Vertical Fitness.

In its Spokeo decision—a case relating to the Fair Credit Reporting Act (FCRA) that has, nonetheless, become relevant in TCPA cases—the Supreme Court determined that a plaintiff “cannot allege a bare procedural violation, divorced from any concrete harm” and must have an injury that is both “particularized” and “concrete.” In the Van Patten case, the defendants tried to implement that ruling to argue that the plaintiff did not have standing in a case where he received three text messages. The Ninth Circuit rejected that argument, looking to the legislative history of the TCPA in order to argue that a TCPA plaintiff “need not allege any additional harm beyond the one Congress has identified,” determining that unsolicited calls and texts, “by their nature, invade the privacy and disturb the solitude of their recipients.” In this new decision in Salcedo, he Eleventh Circuit rejected the Ninth Circuit’s determination, hewing much closer to the Supreme Court’s decision in Spokeo.

Calling the Ninth Circuit’s reasoning in Van Patten “unpersuasive,” the Eleventh Circuit held that “Congress’s legislative findings about telemarketing suggest that the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA.” Drawing a contrast with the receipt of an unsolicited fax—which uses paper and toner and ties up a fax machine for a period of time—the court found that the receipt of a single text message did not constitute harm in any meaningful sense, particularly since the plaintiff did not allege he was charged on a per text basis by his wireless carrier.

In reaffirming Spokeo, rejecting Van Patten, and doing both by looking to congress’s intent in passing the TCPA, this decision could prove to be a powerful precedent against these sorts of actions in the future.