Uprooting much of the court’s precedent in Telephone Consumer Protection Act (“TCPA”) class actions, the Eleventh Circuit sitting en banc unanimously held that a plaintiff who receives one unwanted, automated telemarketing text message has standing to sue under the TCPA because they have suffered a concrete injury. This injury reflects an intrusion into the peace and quiet in a realm that is private and personal.
In Drazen v. Pinto, et al., the underlying case was brought as a putative class action against GoDaddy.com, LLC (“Go-Daddy”) alleging the class received unwanted text messages from Go-Daddy via unlawful telemarketing campaigns using prohibited automatic telephone dialing systems. Following consolidation with two related actions, the parties reached a settlement and plaintiffs moved for preliminary approval. However, the consolidation resulted in additional plaintiffs who only received a single text message. Preliminary approval was granted, dependent upon removal of the named plaintiff who lacked standing under Salcedo v. Hannah, which held that one text message is not enough to establish a concrete injury for federal standing.
One class member, Pinto, objected to final approval of the settlement based on the attorney fees clause. The settlement class was certified over these objections, and Pinto appealed to the 11th Circuit. Without addressing Pinto’s objections, the 11th Circuit in a three-panel decision vacated and remanded the matter because the class definition did not meet Article III standing. On August 17, 2022, Drazen filed a petition for rehearing en banc as to whether a person suffers a concrete injury sufficient for Article III standing if they only received on text message in violation of the TCPA. The 11th Circuit granted the petition and vacated the panel’s decision.
After outlining established Article III law, the Eleventh Circuit held that “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.” The court cited to the recent U.S. Supreme Court decision in TransUnion LLC v. Ramirez, which states, “[i]n looking to whether a plaintiff’s asserted harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis for lawsuit in American courts, we do not require an exact duplicate.” Stated another way, the injury need not be identical but share a close relationship in kind, not degree.
The court analyzed whether the harm of receiving one unwanted text message resembled the harm associated with intrusion upon seclusion, which requires the intentional intrusion into another’s solitude or seclusion which would be highly offensive to a reasonable person. The court held that the harm associated with an unwanted text message shares a close relationship with the harm underlying the tort of intrusion upon seclusion. “Both harms represent ‘an intrusion into peace and quiet in a realm that is private and personal.’ For that reason, the harms are similar in kind, and the receipt of an unwanted text message causes a concrete injury.”
The Eleventh Circuit now follows the majority of jurisdictions that hold that one text message is sufficient for Article III standing. Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686 (5th Cir. 2021); Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85 (2nd Cir. 2019). We expect the volume of cases filed in this Circuit to increase following this ruling, in addition to successful removal actions by defendants.
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