October 15, 2019 Practice Points

Keeping Tabs on Circuit Splits Post-Spokeo

The Eleventh Circuit addresses standing to sue under the TCPA, rejecting the Ninth Circuit’s decision that a single text message can establish concrete injury.

By Jason Kellogg

In its most recent analysis of standing, the Eleventh Circuit in Salcedo v. Hanna held that a single unsolicited text message sent in violation of the Telephone Consumer Protection Act of 1991 (TCPA) did not cause the kind of concrete injury necessary to confer standing to sue. In doing so, the court rejected as “unpersuasive” a Ninth Circuit opinion in Van Patten v. Vertical Fitness Group, LLC, which recognized standing on the very same issue. The Eleventh Circuit did recognize, however, the potential narrowness of its opinion, acknowledging that its conclusion was reached largely because the class plaintiff’s allegations involved only a qualitatively “inconsequential annoyance”—the receipt of a single text message.

The class plaintiff, John Salcedo, brought a class action lawsuit against both his former attorney Alex Hanna and Hanna’s law firm after receiving a text message offering a 10 percent discount off future legal services. The district court rejected defendants’ motion to dismiss but allowed defendants to pursue an interlocutory appeal, which the Eleventh Circuit accepted.

Citing the Supreme Court’s standard in Spokeo, Inc. v. Robins, the Eleventh Circuit panel focused on whether Salcedo’s allegations stated a concrete injury—whether Salcedo’s injury was “real and concrete as opposed to figmentary.” Salcedo alleged intangible harms borrowed largely from cases in the junk fax and robocalling context. Salcedo alleged that Hanna’s text message caused him to waste time, invaded his privacy, and consumed the use of his mobile phone. Salcedo did not allege that the text cost him any money, nor did he allege how much time the text caused him to waste.

In analyzing the issue, the Eleventh Circuit focused largely on congressional intent, finding no evidence that Congress considered the harms of telemarketing by text message when it adopted the TCPA. Looking at telemarketing more generally, the court noted that Congress’ concerns primarily involve privacy within the home. Salcedo did not allege that he received the text at home, and even if he had, the court noted, the nature of a cell phone and its ability to be silenced differs from the disturbance of domestic peace created by a ringing house phone.

On this basis, the court rejected the Ninth Circuit’s Van Patten opinion, pointing out that the Ninth Circuit did not examine how Congress might view isolated text messages sent to a recipient outside the home. The court also looked at potential common law sources of intangible harm, including intrusion by seclusion, nuisance, conversion, and interference with chattel. The court rejected each analogy, finding that the sending of a single text message did not create the kind of serious intrusion or deprivation of property necessary in those types of claims.

In the end, however, the court took pains to emphasize that it was employing a qualitative rather than quantitative measure of injury. It suggested that even a quantitatively small violation could be qualitatively significant where, for example, it tied up a device for a period or caused a recipient to waste time addressing it. To underscore this point further, Judge Jill Prior issued a short concurrence emphasizing that the majority opinion leaves unaddressed whether a plaintiff receiving multiple unwanted text messages may have suffered a concrete injury.

The Eleventh Circuit’s decision is indicative of a subtle shift undertaken by courts in assessing standing for statutory violations following the Supreme Court’s decision in Spokeo. While courts continue to struggle to apply consistently the standard set forth in Spokeo, Salcedo provides another reminder that plaintiffs cannot rely on the existence of a private right of action to establish standing. Instead, the higher hurdle for standing requires establishing injury to a legally recognized interest and more than a technical violation (e.g., a single text message).

Jason Kellogg is a partner at Levine Kellogg Lehman Schneider + Grossman LLP in Miami, Florida.

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