Hunton Employment & Labor Perspectives

Does an individual who receives a single text message, in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), have standing to sue in federal court?  The answer, for now, depends on where the lawsuit is filed.

On August 28, 2019, the Eleventh Circuit Court of Appeals created a circuit split when it decided Salcedo v. Hanna, in which it held that the recipient of a single multimedia text message advertisement did not have standing to sue in federal court because he had not suffered an “injury in fact,” a requirement for Article III standing.  The plaintiff, John Salcedo, alleged that his former attorney sent him a single text message advertising a ten percent discount on his services.  Salcedo alleged the text message violated the TCPA, a federal statute that prohibits using automatic telephone dialing systems to call residential or cellular telephone lines without the consent of the called party.  Although the TCPA does not address text messages (which did not exist when the TCPA was created), the Federal Communications Commission has applied the TCPA to text messages.

Salcedo claimed that the text message “caused [him] to waste his time answering or otherwise addressing the message” and that “[w]hile doing so, both Plaintiff and his cellular phone were unavailable for otherwise legitimate pursuits.”  Salcedo asserted that the text message “resulted in an invasion of [his] privacy and right to enjoy the full utility of his cellular device.”

The Eleventh Circuit acknowledged that Salcedo’s complaint appeared to state a violation of the TCPA based on the single text message advertisement from Salcedo’s former attorney, but the Court distinguished Salcedo’s alleged injury from the injuries alleged in other cases involving a single violation of the TCPA.  For example, a single junk fax causes harm because the fax machine is unavailable for legitimate business during the minute or so it takes to receive the junk fax, and the junk fax consumes paper and toner.  A cell phone, on the other hand, is not unavailable while receiving a text message, and Salcedo did not allege that the text message cost him any money.

The Salcedo Court recognized that the Ninth Circuit reached the opposite conclusion on the same issue in Van Patten v. Vertical Fitness Group, LLC.  There, the Ninth Circuit found that two unsolicited text messages constituted an injury in fact.  The Eleventh Circuit rejected Van Patten’s reasoning as based, in part, on “broad overgeneralization.”  According to the Eleventh Circuit, the Ninth Circuit’s injury analysis stopped at its conclusion that “Congress identified unsolicited contact as a concrete harm.”  The Salcedo Court, on the other hand, found that Congress’s concerns when it enacted the TCPA “are less clearly applicable to text messaging,” and concluded that Salcedo had not suffered an injury in fact.

This split in reasoning between the Ninth and Eleventh Circuits may eventually be resolved by the Supreme Court.  Until then, however, the concrete harm required by the Eleventh Circuit may pose a significant barrier to certification of TCPA class actions in that jurisdiction, and may cause more TCPA class actions to be filed in the Ninth Circuit.