The Eleventh Circuit has now joined seven other circuits in holding that receipt of unwanted text messages constitutes concrete injury for standing. On July 24, the Eleventh Circuit issued an en banc decision in Drazen v. Pinto, holding that a plaintiff who received a single, unwanted text message has standing to sue under the Telephone Consumer Protection Act (TCPA). The court departed from its earlier ruling in Salcedo v. Hanna, which held that a single unsolicited text message is but a “brief, inconsequential annoyance [] categorically distinct from those kinds of real but intangible harms” that confer Article III standing.

In Drazen, the plaintiff brought a class action against Go-Daddy.com, LLC alleging that over two years the company used an automatic telephone dialing system (ATDS) to make promotional calls and text messages to sell products and services to former customers in violation of the TCPA. The parties reached a settlement agreement resolving the class action. The plaintiff then filed a motion for a preliminary approval of the agreement which defined the class to include “all persons within the United States who received a call or text message to his or her cellular phone from” GoDaddy between November 2014 and December 2016.

The district court issued an order directing the parties to brief how their case was distinguishable from Salcedo. Upon receipt of the parties’ briefing, the district court concluded that because one of the named plaintiffs only received a single text, he and the class members who also received one text lacked a viable claim. However, the proposed settlement was approved, dependent on the parties’ agreement to remove the named plaintiff who lacked standing. One class member, Pinto, objected to the final settlement amount based on the attorney’s fee award. The settlement was certified over the objection, and Pinto appealed. On appeal, the Eleventh Circuit vacated and remanded the case finding the class definition did not meet Article III standing to the extent it included individuals who received a single unwanted text message. Drazen then filed a petition for rehearing en banc.

The Eleventh Circuit observed that the trend among other circuits is to consider the kinds of harms associated with intrusion upon seclusion at common law and not the degree of offensiveness required state a claim. The court concluded that the harm associated with an unwanted text message “shares a close relationship with the harm underlying the tort of intrusion upon seclusion” as both harms represent “an intrusion into peace and quiet in a realm that is private and personal.” Therefore, receipt of a single unwanted text message causes a concrete injury.

Our Take:

Given the court’s ruling in Drazen, there likely will be an increase in the volume of TCPA cases filed in the Eleventh Circuit related to single unwanted text messages or calls.