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Litigation News

Winter 2024 Vol. 49, No. 2

Unsolicited Text Sufficient for Concrete Injury

Kelso Lorne St. Jacques Anderson


  • A consumer receiving a single, unwanted text message from a business suffers an injury-in-fact.
  • The federal appellate court cited U.S. Supreme Court precedent to reverse its own earlier decisions.
Unsolicited Text Sufficient for Concrete Injury
Patchareeporn Sakoolchai via Getty

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A consumer receiving a single, unwanted text message from a business suffers an injury-in-fact sufficient to confer Article III standing even though that consumer otherwise suffered no direct physical injury or harm. The en banc ruling from the federal appellate court cited U.S. Supreme Court precedent to reverse its own earlier decisions, which had previously held that “receipt of a single text message” is not a concrete injury. Given the low standing threshold for certain consumer cases, ABA Litigation Section leaders suggest mindful strategies that attorneys for consumers and businesses alike should consider to mitigate risks associated with consumer litigation.

Procedural Posture Seeking Standing

In Drazen v., the plaintiff filed a class action lawsuit in the U.S. District Court for the Southern District of Alabama alleging that the defendant used a prohibited “automatic telephone dialing system” (ATDS) over a two-year period to make calls and send text messages selling products and services to consumers who were no longer customers of the companies that sought to consummate sales, in violation of the Telephone Consumer Protection Act (TCPA).

The class definition included plaintiffs who received one, or more than one, text or voice message from the defendant’s ATDS. So the district court required the plaintiffs to explain how their case was distinguishable from Salcedo v. Hanna, a prior U.S. Court of Appeals for the Eleventh Circuit case holding that “receipt of a single text message” is not a concrete injury. Subsequently, the parties reached a settlement with the defendant, and applying Salcedo, the district court concluded that only class members who received more than one text or voice message from the defendant had a viable claim in their jurisdiction.

An Eleventh Circuit panel vacated the district court’s judgment and concluded that the class definition could not stand because it included plaintiffs who received only one voice or text message and, thereby, lacked Article III standing under Salcedo. The plaintiff then moved for a rehearing en banc asking for clarification of Salcedo and the elements required to pursue a TCPA claim.

Nature, Not Extent, of Harm Matters

Among other things, the TCPA protects consumers’ right to privacy by prohibiting companies from using ATDS to make unsolicited voice or text calls to consumers without their consent. The Eleventh Circuit began its analysis by citing Article III, Section 2 of the U.S. Constitution as the basis for federal courts adjudicating only “cases and controversies.”

Then the court noted that three elements must be present for a plaintiff to have standing to bring a case or controversy in federal court. First, the plaintiff must suffer an injury-in-fact that is “concrete, particularized, and actual or imminent.” Second, the plaintiff must show that the defendant “likely caused” the plaintiff’s injury. Finally, the plaintiff must show that a favorable judicial decision will remedy the plaintiff’s injury.

Quoting the U.S. Supreme Court’s precedent in Spokeo, Inc. v. Robins, the Eleventh Circuit concluded that resolution of this case rested on the first element—the concreteness element—and “an injury is concrete if it actually exists—that is, if it is ‘real, and not abstract.’” The court noted that some harms, such as “physical injury or financial loss,” are obviously concrete, but intangible harm may also meet the concreteness element as well. As to intangible harm, the court observed that Congress may enact a law to address that harm, but such law is only “instructive” and not dispositive of harm. Again quoting Spokeo, the court noted that any intangible harm that Congress seeks to address through statute must have a “close relationship” to a common law claim.

Next, the court cited the Supreme Court decision in TransUnion v. Ramirez for the proposition that the common law tort of intrusion upon seclusion is analogous to the privacy right protected by the TCPA that the plaintiffs sought to redress when they received a single unsolicited voice or text message from the defendant. The court rejected the defendant’s argument that the privacy right protected by the TCPA lacks the “highly offensive to a reasonable person” element that the tort of intrusion upon seclusion warrants. It instead concluded that all that is required for a close relationship is a similarity in the nature of the harms sought to be protected. Then, citing precedents from the several circuit courts that have considered the issue, the Eleventh Circuit observed that the “kind but not degree” of the harm or the “character” of the harm suffered is the threshold for a “close relationship” to exist between a common law claim and a congressionally enacted statutory claim.

Applying the prior framework, the court then observed that the tort of intrusion upon seclusion includes the elements of “(i) intentional intrusion (ii) into another’s solitude or seclusion, (iii) which would be highly offensive to a reasonable person.” The court then reasoned that even a single “unwanted text message is . . . offensive to some degree to a reasonable person.” As such, the court held that the “harm associated with an unwanted text message shares a close relationship to the harm underlying the tort of intrusion upon seclusion.” Therefore, the court concluded that the plaintiffs who received a single unwanted text or voice message from the defendant suffered a concrete injury-in-fact sufficient for Article III standing.

Consumers and Businesses Be Aware

In two separate opinions, three en banc judges wrote terse narratives concurring in the en banc decision. Judges Jordan and Newsom joined in one opinion to note that they were critical of their own circuit’s and the Supreme Court’s standing jurisprudence, but “were pleased to concur” in the en banc decision. Judge Branch cited the Supreme Court precedent in Ramirez and the court’s own precedent in Hunstein v. Preferred Collection and Management Services, Inc. as rudders that guided the en banc ruling.

The technical issue of standing notwithstanding, Litigation Section leaders say businesses and consumers alike should be mindful of certain strategies when bringing claims under the TCPA. “Businesses who send text messages should treat the TCPA seriously,” warns Mark E. Rooney, Washington, DC, cochair of the Litigation Section’s Consumer Litigation Committee. “Text message marketing is a low-cost way to reach massive numbers of consumers quickly and efficiently, but those benefits raise the stakes for liability. If text communications are not made in compliance with the law, the statutory damages available under the TCPA can quickly turn a seemingly minor error into a big case,” Rooney cautions.

Sounding a jurisdictional warning to consumers who may bring TCPA claims, consumers should choose their forum wisely. “Regardless of where a TCPA case is filed, practitioners should be cognizant of the fact that good facts make good law and bad facts make bad law. If you like your state court, it does not hurt to file there as state courts also have jurisdiction over TCPA claims, and it can be cheaper to file in state court,” notes Christopher E. Roberts, St. Louis, MO, cochair of the TCPA Subcommittee of the Section’s Consumer Litigation Committee. Not only is filing in state courts possibly cheaper than in a federal forum, “pursuing claims in state court remains a marginally safer bet, although that path has its own drawback. TCPA plaintiffs and their lawyers will have to remain vigilant and strategic when picking a forum,” opines Rooney.

Whether it is a single unsolicited message or many more, a vigilant compliance process is the best way for a business to avoid TCPA liability. “Compliance is always key with text communications,” cautions Virginia B. Flynn, Charlotte, NC, cochair of the TCPA Subcommittee of the Section’s Consumer Litigation Committee. “We advise clients to carefully monitor opt-ins and opt-outs. Our clients want to meet customers on the customers’ terms, and to respect customers’ decisions to choose how they want to receive communications. The landscape for text compliance is always changing, and we encourage our clients to monitor risk areas and jurisdictions,” concludes Flynn.

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