Fifth Circuit Rules Single, Unwanted Text Message Enough to Confer Standing to Sue

Ignoring a precedent that had been set by another Appeals Court and overturning a ruling that was issued by a District Court judge, the Fifth Circuit Court of Appeals yesterday ruled that the receipt of a single text message is enough to confer standing for a plaintiff to sue under the Telephone Consumer Protection Act, likening unwanted messages to a “public nuisance.”

A copy of the ruling in the case of Cranor v. 5 Star Nutrition can be accessed by clicking here.

The plaintiff made a purchase at one of the defendant’s retail locations and provided his cell phone number to the company. The company sent two unsolicited text messages to the plaintiff, after which he revoked consent by replying “STOP.” Following a dispute, the two sides reached a settlement where the plaintiff was paid $1,000. But the defendant sent the plaintiff another text message after the settlement had been reached. The plaintiff filed a class-action suit, alleging the defendant sent messages using an automated telephone dialing system to the plaintiff without receiving consent to do so. A District Court judge dismissed the suit for lack of standing, ruling that a single text message is not as intrusive as a voice call to a residential landline.

In issuing its ruling overturning the dismissal, the panel of judges from the Fifth Circuit opted not to follow the Eleventh Circuit’s ruling in Salcedo v. Hanna, saying the ruling was “mistaken” and that it “misunderstands” the Supreme Court’s ruling in Spokeo v. Robins. “Salcedo’s focus on the substantiality of an alleged harm threatens to make this already difficult area of law even more unmanageable,” the Fifth Circuit wrote. “We therefore reject it.”

To make sure it made its point, the Fifth Circuit compared sending unwanted text messages to a public nuisance, such as houses of prostitution, bad odors, and a malarial pond. Quoted the court:

[Public nuisance] includes interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond . . . ; with public morals, as in the case of houses of prostitution, illegal liquor establishments, [or] gambling houses . . . ; with the public peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration.

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