Once an outlier, the 11th U.S. Circuit Court of Appeals recently joined seven of its sister Circuit Courts in holding that receipt of a single, unwanted text message constitutes the concrete injury required for standing in class actions filed under the Telephone Consumer Protection Act (TCPA).
In making this ruling, the court effectively receded from its decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019). In Salcedo, the 11th Circuit held that the receipt of a single text message was not a sufficiently concrete injury to give rise to Article III standing. Since at least 2019, TCPA class action defendants litigating in the 11th Circuit have relied on Salcedo and successfully defeated class allegations seeking to certify a class of individuals who received only one unsolicited text message.
In Drazen v. Pinto, – F.4th –, 2023 WL 4699939 (July 24, 2023), an en banc 11th Circuit receded from its defendant-friendly decision in Salcedo and held that a plaintiff who receives a single unwanted, illegal telemarketing text message suffers a concrete injury sufficient to confer Article III standing. The decision brought the 11th Circuit in line with the 4th, 5th, 6th, 7h, 9th and 10th Circuits, who have held that receiving either one or two unwanted texts or phone calls resembles the kind of harm associated with intrusion upon seclusion sufficient to confer standing.
The court’s en banc decision in Drazen came after the named plaintiff moved for rehearing of the panel’s decision to vacate a class settlement defining the class members as those who received “a call or text message.” The underlying case involved three consolidated class actions against GoDaddy.com, each of which alleged the company violated the TCPA by using a prohibited automatic telephone dialing system to make unsolicited contact with plaintiffs through calls and texts to market its services and products. The parties submitted a proposed class settlement agreement to the district court defining the class as “All persons within the United States who received a call or text message to his or her cellular telephone from Defendant from November 4, 2014 through December 31, 2016.”
After the district court ultimately permitted the single-text message recipients to remain in the class despite Salcedo and approved the settlement, a potential class member appealed the attorneys’ fees award. Before considering the question on appeal, the 11th Circuit considered whether it had subject matter jurisdiction under Article III in light of Salcedo. The panel rejected the proposed class definition because it included individuals who received only a single text message, which violated its holding in Salcedo. The named plaintiff then moved for rehearing en banc, urging the 11th Circuit to reevaluate Salcedo.
In so reevaluating, the 11th Circuit clarified that the concreteness inquiry centers on whether the harm shares “a close relationship” to a harm traditionally regarded as providing a basis for a lawsuit at common law. In comparing the harms, the 11th Circuit noted that a “carbon copy” is not required; “the new harm need only be ‘similar to’ the old harm.” On this point, the 11th Circuit noted that seven of its sister Circuit Courts have declined to consider the degree of offensiveness required to state a claim for intrusion upon seclusion at common law and instead have held that receiving either one or two unwanted texts or phone calls resembles the kind of harm associated with intrusion upon seclusion.
The 11th Circuit ultimately concluded that asking whether the harms are similar in kind but not degree makes sense. According to the court, asking it to draw a line at one or two text messages requires it to make a choice of degree, not kind. Because the harm associated with an unwanted text message shares a close relationship with the kind of harm underlying the tort of intrusion upon seclusion, the court held that the receipt of a single, unwanted text message causes a concrete injury.
Although the Drazen decision opens the door for more TCPA cases to proceed as class actions, the decision at least harmonizes the federal Circuit Courts on the issue of standing in TCPA cases. This en banc decision, along with the 11th Circuit’s recent en banc decision in Hunstein v. Preferred Collection and Management Services, Inc., 48 F.4th 1236, 1242 (11th Cir. 2022), reveals a concerted effort by the 11th Circuit to bring clarity to its oft-criticized standing jurisprudence.