In Drazen v. Pinto, No. 21-10199 (11th Cir. July 24, 2023), the en banc Eleventh Circuit reverses itself and holds that a single junk text confers Article III standing on a consumer under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii). See my May 27, 2021 post on the same topic.
A circuit panel had ruled in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), that the “receipt of a single text message” in violation of the TCPA is not a concrete injury that supports Article III standing. This put the Eleventh Circuit out-of-whack with seven other circuits holding that one unconsented text or call was enough.
This is the backdrop of the current case, where a plaintiff who allegedly received a single unconsented text from GoDaddy.com brought a class action in Alabama on behalf of all other consumers who received one or more such texts from the defendant. The class action settled. The settlement was then challenged by an objector, who raised complaints about the coupon aspects of the settlement under the Class Action Fairness Act (CAFA) and the attorney’s fees (which topped $10 million).
It was the district court – in the face of Salcedo – that raised the issue of standing. It ultimately held that the named plaintiff lacked standing (because they only received one instead of multiple texts) and so would have to be substituted with a new plaintiff. “As for the roughly 91,000 other class members who also received only one text and therefore lacked a viable claim in this Circuit under Salcedo, the district court noted that ‘this is a nation-wide settlement,’ and opined that those class members ‘do have a viable claim in their respective Circuit.’ For that reason, the district court reasoned that GoDaddy could ‘settle those claims in this class action’ even though those litigants’ claims were ‘meritless’ in this Circuit.” The district court approved the settlement and the objector appealed.
On appeal to the Eleventh Circuit, the original panel dismissed the case for lack of jurisdiction due to no standing, citing to the controlling authority of Salcedo. The panel held that because every class member, not just the named plaintiff, must individually have Article III standing (citing TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204–05, 2208 (2021)), the class definition was too broad because it included many people who just got one text. The panel accordingly did not reach the objector’s issues.
The en banc Eleventh Circuit overrules the panel and holds that a single text was enough to give the named plaintiff Article III standing.
The error below, the en banc court concludes, was that in assessing whether the alleged injury was sufficiently concrete to confer standing, the panel (and Salcedo) demanded too much of the plaintiff. “The Supreme Court has acknowledged the harm associated with the common-law tort of intrusion upon seclusion as an example of a harm ‘traditionally recognized as providing a basis for lawsuits in American courts’” (quoting TransUnion, 141 S. Ct. at 2204). Everyone seemed to agree that the text represented a kind of intrusion on seclusion, but not (by the district court or panel’s lights) to a sufficient degree to rise to an actionable tort.
The en banc court holds that the harm need only be of the same kind, not the same degree, as recognized in common-law tort. “[S]even of our sister Circuits have declined to consider the degree of offensiveness required to state a claim for intrusion upon seclusion at common law. Instead, they have held that receiving either one or two unwanted texts or phone calls resembles the kind of harm associated with intrusion upon seclusion.” Drafting off the consensus view, the en banc court holds that this approach better accords with the Supreme Court’s standing law and Eleventh Circuit’s more recent en banc decision in Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236 (11th Cir. 2022).
Here, the en banc court finds, plaintiff’s TCPA case tracks the elements of common-law Intrusion upon seclusion, which “consists of an (i) intentional intrusion (ii) into another’s solitude or seclusion, (iii) which would be highly offensive to a reasonable person . . . . Unwanted phone calls, as we’ve noted, are among the privacy intrusions that give rise to liability for intrusion upon seclusion.” Even if one text were not necessarily “highly offensive,” it would “nonetheless [be] offensive to some degree to a reasonable person.”
Ultimately, “the Constitution empowers Congress to decide what degree of harm is enough so long as that harm is similar in kind to a traditional harm. And that’s exactly what Congress did in the TCPA when it provided a cause of action to redress the harm that unwanted telemarketing texts and phone calls cause . . . . In sum, then, we hold that the harm associated with an un-wanted text message shares a close relationship with the harm underlying the tort of intrusion upon seclusion . . . . While an unwanted text message is insufficiently offensive to satisfy the common law’s elements, Congress has used its lawmaking powers to recognize a lower quantum of injury necessary to bring a claim under the TCPA.”
The case is remanded to the original panel to decide the CAFA and attorney’s fees issues.
Judges Jordan, Newsom, and Branch filed brief concurring opinions highlighting their own views about standing.
Paul Mollica's Federal Courts Blog 