[author: Joshua Threadcraft]

In a class action lawsuit brought on behalf of those purportedly receiving text messages regarding the XBOX gaming system, Defendant argued that the absence of allegations that Plaintiff was himself charged by his wireless carrier for the text message he received, combined with the Complaint’s reliance on general allegations of a “growing problem” of “wireless spam” and other non-particularized forms of harm, were insufficient to establish a cognizable injury to Smith. Plaintiff countered, contending that he experienced—and alleged—numerous sufficiently particularized injuries, and economic injury resulting from the fact that he pays his wireless service in some way to receive text messages, even if he does not incur a per-text fee. Plaintiff also argued that the TCPA provides standing for plaintiffs in his position even where no economic harm is alleged.

Agreeing with the reasoning found in Gutierrez v. Barclays Group, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011), the U.S. District Court for the Southern District stated that “based on the plain language of the TCPA and supported by the legislative history [ of the Act. . .], the Court finds that by alleging he received a text message in violation of the TCPA, Smith has established a particularized injury in satisfaction of Article III premised on the invasion of his privacy, even absent any economic harm. See Smith v. MicroSoft Corp., No. 11-cv-1958 JLS, 2012 WL 2975712, at *6 (S.D. Cal. July 20, 2012).

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.