TCPA Standing: A New Circuit Split and Other Developments

June 17, 2021

Two U.S. Circuit Courts of Appeals recently weighed in on what it takes to establish standing to pursue a Telephone Consumer Protection Act (TCPA) claim. The 5th Circuit held that receipt of one unwanted text message is enough to satisfy Article III, which deviates from a prior 11th Circuit decision holding that one text message does not confer standing. On the other hand, the 3rd Circuit held that a TCPA plaintiff did not have standing where the plaintiff alleged only a TCPA violation, but no harm. Finally, the 11th Circuit issued an opinion interpreting the Fair Debt Collection Practices Act (FDCPA) that has important implications for debt collectors using vendors to place calls or text messages.

A New Circuit Split Over TCPA Standing. On May 26, 2021, the 5th Circuit in Cranor v. 5 Star Nutrition, No. 19-51173, held that the receipt of a single, unsolicited text message is sufficient to establish standing under Article III. The decision conflicted with the 11th Circuit’s previous decision in Salcedo v. Hanna, 936 F.3d 1162 (2019), where the court found that one unwanted text was not enough to confer standing because “the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA.”

In rejecting Salcedo, the 5th Circuit found that, under Spokeo v. Robins, 136 S.Ct. 1540 (2016), the plaintiff sufficiently alleged a concrete injury because there is a “close relationship” between the injury of an unwanted text message and the common-law harm of public nuisance. The plaintiff alleged that the unwanted text message interfered with his right to use “telecommunications infrastructure without harassment,” which the court analogized to a driver’s right to use the road without odors or noises. This decision creates a circuit split on whether a single text message is enough to confer standing and reinforces the uncertainty among courts over what type of alleged harm gives rise to standing under the TCPA.

3rd Circuit: No Injury, No Standing. On May 19, 2021, the 3rd Circuit ruled that the plaintiff in Leyse v. Bank of America, N.A., No. 20-1666, did not have standing to pursue a TCPA claim. Though the plaintiff had alleged a TCPA violation (a pre-recorded call to a residential landline he shared with his roommate), the court held that the plaintiff had not alleged any harm resulting from the call. The plaintiff instead argued that with respect to the TCPA, Article III standing does not require any allegations of harm beyond the statutory violations themselves.

The 3rd Circuit declined to adopt such an “absolute rule of standing with respect to the TCPA.” Instead, the court held that the plaintiff was required to allege an injury the TCPA is intended to prevent, such as nuisance, invasion of privacy or similar injuries. The opinion demonstrates that a plaintiff who “asserts a bare procedural violation that resulted in no harm” does not have standing to pursue a TCPA claim.

A Word of Caution to Debt Collectors Using Call or Text Message Vendors. On April 21, 2021, the 11th Circuit in Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 994 F.3d 1341, issued an unprecedented ruling that a debt collector sharing a debtor’s information with a letter vendor violates the FDCPA. Though the decision involved letter vendors, the logic in Hunstein could extend to other types of vendors, including vendors who place calls or send text messages. 

Though the defendant had argued that the plaintiff lacked standing because the plaintiff had not been injured, the 11th Circuit found that, under Spokeo, the plaintiff had standing because the statutory violation at issue bore a close relationship to a common-law tort: invasion of privacy. The defendant has sought en banc review of the 11th Circuit’s ruling on standing. Additionally, numerous amicus briefs have been filed challenging the merits of the 11th Circuit’s decision.

The authors thank McGuireWoods summer associate Katherine Cienkus for assistance preparing this article. She is not licensed to practice law.