By: Beth-Ann E. Krimsky, Esq. and Jamey R. Campellone, Esq.
On August 28, 2019, the Eleventh Circuit issued an opinion rejecting Article III standing in the context of a Telephone Consumer Protection Act (“TCPA”) action in
(11 Salcedo v. Hanna, No. 17-14077 th Cir. Aug. 28, 2019). The time to file a petition for rehearing has not expired. The Eleventh Circuit’s most recent decision addressing the TCPA is likely to affect TCPA lawsuits nationwide that are based on allegations of receiving text messages. The Eleventh Circuit through the Honorable Judges Elizabeth Branch, Danny Reeves (sitting by designation from the E.D. Kentucky) and Jill Pryor (concurring in judgment) reversed the District Court and held a TCPA plaintiff who alleged receipt of one text message does not have Article III standing. Not only may this decision impact the pleading stage, but the class certification stage also is now poised to be more difficult for the plaintiffs’ bar to navigate as this holding opens the door to the need for individualized inquiries as to individual injury in every class action lawsuit involving text messages.
Recognizing the lack of mention of “text message” in the TCPA, the Court opined that the “receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA.” As for the lack of standing based on a lack of injury, the Eleventh Circuit found that the specific harm allegedly suffered by Plaintiff Salcedo did not amount to a concrete harm that meets the injury-in-fact requirements of Article III. The Eleventh Circuit stated it “assessed how concrete and real the alleged harm is,
Spokeo, 136 S. Ct. at 1548, and we have concluded that it is not the kind of harm that constitutes an injury in fact.”
In its opinion, the Eleventh Circuit confirmed “[t]he federal courts . . . have only the power ‘to say what the law is.’
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And when a plaintiff comes to us without alleging a concrete harm [i.e., only receiving one text message], a real injury that states a case or controversy, we cannot do even that much.”
The Appellate Court recognized its view is different from its sister circuit, when it concluded the Ninth Circuit’s decision in
Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017), was not persuasive in the instant case. Thus, the Eleventh Circuit, while tempering the ability of those who seek to expand and exploit the TCPA to well beyond its intended application and purpose, has set the stage for a United States Supreme Court review.
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