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Eleventh Circuit holds one text message sufficient to establish standing in robocall case

8/21/23

By: Matthew N. Foree

Article III of the Constitution limits federal-court jurisdiction to actual cases or controversies. Generally, for there to be a case or controversy capable of resolution, the plaintiff must have a personal stake in the case, or “standing.” To meet this burden and establish standing, a plaintiff must show, among other things, that he suffered an injury in fact that is concrete, particularized, and actual or imminent. 

The United States Court of Appeals for the Eleventh Circuit had been an outlier regarding the requirements to satisfy Article III standing under the Telephone Consumer Protection Act (“TCPA”), which prohibits robocalls. The Eleventh Circuit’s 2019 decision in Salcedo v. Hanna, 936 F.3d 1162 (11^th Cir. 2019) held that receipt of a single text message was not sufficient to establish a concrete injury under the TCPA. In that case, the court determined that the receipt of an unwanted text was a “brief, inconsequential annoyance” that did not rise to the level of real, intangible harms such as being interrupted at dinner at home by the ringing of the telephone. 

The Eleventh Circuit recently changed course in an en banc decision in Drazen v. Pinto, LLC, 74 F.4^th 1336 (11^th Cir. 2023). In analyzing the issue, the Eleventh Circuit determined that the harm of receiving an unwanted text message shares a close relationship with the common-law claim of intrusion upon seclusion. It held that both harms “reflect an intrusion into the peace and quiet in a realm that is private and personal.” It focused on the harm from receiving an unwanted text message as being similar to that of an intrusion upon seclusion in kind, and not in degree. Accordingly, the court determined that a plaintiff who receives an unwanted, illegal text suffers a concrete injury. 

Whereas those receiving a single, illegal text message had lacked standing under the prior decision in Salcedo, the doors are now opened by Drazen. According to WebRecon statistics of consumer filings in May 2023, after a slowdown in April, TCPA filings were up by 98.2%. (See statistics here). These same statistics showed that the top court in which consumer lawsuits were filed was the U.S. District Court for the Northern District of Georgia. With the loosening of the standing requirements in this circuit, we can expect an increase of TCPA filings, including class actions, in the future.  

For more information, please contact Matthew N. Foree at mforee@fmglaw.com or your local FMG attorney.