SALCEDO AND WHAT IT MEANS FOR TCPA ACTIONS IN FLORIDA
A topical decision by the Eleventh Circuit will make it more problematic for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (TCPA). In Salcedo v. Hanna, et al., Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. 2019), the Eleventh Circuit ruled that a single text message did not cause sufficient harm to sue in federal court. As a result, “single text message” TCPA cases may be a thing of the past, at least in the federal courts across the three States in the Eleventh Circuit (Florida, Georgia, and Alabama). Traditionally, the Eleventh Circuit has been a hotbed for TCPA claims, Florida in particular, along with California and Illinois, lead the nation in the amount of TCPA cases filed. However, given contradiction with a ruling by the Ninth Circuit, the issue may now be ripe for decision by the U.S. Supreme Court.
In Salcedo, the plaintiff, John Salcedo, received a single automated text message from his former attorney offering a ten percent discount on legal services. Salcedo then filed a putative class action seeking to represent a class of individuals who received similar unsolicited text messages from the attorney and his law firm in alleged violation of the TCPA. He sought to recover statutory penalties of $500 to $1,500 for each text message sent. He also alleged that the text message caused him to “waste his time answering or otherwise addressing the message” and invaded his privacy and “right to enjoy the full utility of his cellular device.”
The three-judge panel of the Eleventh Circuit did not find this argument to hold water. In a comprehensive opinion, the panel assessed its own precedent, the legislative background of the TCPA, and the history of the Article III standing requirement. The Court paid specific attention to the Supreme Court’s decision in Spokeo v. Robins. In Spokeo it was determined that the Supreme Court vacated and remanded the Ninth Circuit’s opinion and held in the context of a Fair Credit Reporting Act (FCRA) claim that the injury-in-fact requirement for standing required a concrete and particularized injury. Article III standing requires a concrete injury even in the context of a statutory violation.” As a result, the allegation of a bare procedural violation without any concrete harm was insufficient to demonstrate Article III standing. Ultimately the Court decided that Salcedo’s allegations about a single text message failed to state a concrete injury-in-fact necessary for federal jurisdiction.
The Eleventh Circuit expounded that Salcedo’s “allegation is precisely the kind of fleeting infraction upon personal property that tort law has resisted addressing.” The court noted a text “consumes the receiving device not at all.” It also found “less congressional concern about calls to cell phones” compared to residential landlines. The court also noted that a text message is “qualitatively different” from a fax when it comes to intangible costs, such as tying up a machine. Fax machines, the court reasoned, are only capable of receiving one fax at a time, and it can take a minute or more for a single fax to be received. A cell phone, by contrast, can receive multiple messages at a time, and the user can access the phone’s other messages while the message is being received. Accordingly, circuit precedent conferring standing for receipt of a fax simply had no bearing on standing for receipt of a single text. Accordingly, the court concluded “a brief, inconsequential annoyance” is “categorically distinct from those kinds of real but intangible harms” and Salcedo failed to satisfy Article III’s injury-in-fact requirement.
The court stressed that its ruling was not based on “how small or large” Salcedo’s alleged injury was, but rather on the “qualitative nature of the injury.” The court further explained that “[s]ome harms that are intangible and ephemeral” may establish an injury-in-fact, but Salcedo’s allegations of the harm he underwent from single text message do not.
The court equated the “chirp, buzz, or blink of a cell phone receiving a single text message” 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.”
Thus, the court held that mere annoyance is not enough for federal jurisdiction under Article III, but suggested that allegations that a call or text message “shattered” a plaintiff’s “domestic peace” by interrupting a family dinner might be enough.
As briefly mentioned above, the Salcedo ruling appears to conflict with the Ninth Circuit’s ruling in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017), which found that unsolicited calls or texts, “by their nature, invade the privacy and disturb the solitude of their recipients.” The Eleventh Circuit found Van Patten to be “unpersuasive,” setting up a circuit split that may result in adjudication by the U.S. Supreme Court.
The Salcedo decision will have a significant impact on class certification in the Eleventh Circuit. Now that merely receiving a text is not enough to establish Article III standing, potential class members will need to identify a concrete harm caused by the receipt of an unwanted text message, and that harm will vary from text to text and person to person. This inherent variance could make class certification all but impossible in TCPA suits, and will likely result in the plaintiffs’ bar pursuing rehearing and, if that is unsuccessful, relief from the Supreme Court. While the Southern District of Florida has become an increasingly popular forum for TCPA suits, the Salcedo decision (in combination with the Ninth Circuit’s decisions in Marks v. Crunch San Diego and Duguid v. Facebook regarding the definition of an automatic telephone dialing system or ATDS) may have the effect of driving more litigation to the Ninth Circuit, where the standard for pursuing a TCPA claim—at least for now—is different.
Salcedo is an important reminder that not every unwanted text message supports a putative nationwide class action under the TCPA. Instead, plaintiffs must show that the text message actually resulted in a concrete injury of the specific sort that Congress intended to address, or that presents highly offensive intrusions into personal privacy as recognized at common law. It remains to be seen whether these requirements can be met in individual or putative class actions challenging text messages under the TCPA.
Sweeney Law, P.A. Has Vast Experience in Matters Involving TCPA Cases
Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex TCPA compliance and litigation matters throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding TCPA claims and/or compliance issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.