In an en banc decision, the entire Court of Appeals for the Eleventh Circuit ruled yesterday that receiving a single unwanted text message is sufficient for an individual to have standing to sue the sender of the message in federal court for violating the Telephone Consumer Protection Act, and remanded the case back to a panel of Eleventh Circuit judges to consider the rest of the appeal.
A copy of the ruling in the case of Drazen et al. v. Pinto can be accessed by clicking here.
Yesterday’s ruling undoes the precedent that had been set back in 2019 when the Eleventh Circuit ruled in Salcedo v. Hanna that receiving one unwanted text message was insufficient for an individual to have standing to pursue a TCPA lawsuit.
That same year, Drazen filed a lawsuit against Go-Daddy, alleging it violated the TCPA by sending promotional calls and text messages using an automated telephone dialing system. As the two sides were discussing a settlement, a District Court judge ruled that only the named plaintiffs had standing and that anyone who only received one text message did not, thanks to Salcedo. An objector to the settlement and appealed the ruling to the Eleventh Circuit. The panel dismissed the appeal for lack of jurisdiction, ruling that the members of the class did not have standing. Drazen then moved for an en banc rehearing, to reevaluate the Salcedo ruling.
In issuing its ruling, the panel determined that whether the plaintiffs in this case had standing or not hinged on whether the injury they suffered was concrete or not. Receiving a single text message is an invasion of privacy and an intrusion upon seclusion, the plaintiffs argued in their appeal. The defendant, meanwhile, argued that one text message could not be considered to be “highly offensive.”
Looking at what other Appeals Court have done, the Eleventh Circuit saw “they have held that receiving either one or two unwanted texts or phone calls resembles the kind of harm associated with intrusion upon seclusion.” The Eleventh Circuit even looked to its ruling in Hunstein v. Preferred Management & Collection Services because it determined in that case that the element of publicity is black or white — it exists or it doesn’t.
“To be sure, a single unwanted text message may not ‘be highly offensive to the ordinary reasonable man,’ ” the Eleventh Circuit wrote. “Yet an unwanted text message is nonetheless offensive to some degree to a reasonable person. Even GoDaddy conceded at oral argument that receiving one unwanted text message each day for thirty days would be enough to satisfy the offensiveness element.
“And that concession is the whole ballgame. After all, the argument that thirty unwanted text messages in thirty days are enough but one is not is an argument of degree, not kind. If thirty are enough, then are twenty-nine? Are twenty-eight? How about two? Drawing the line necessarily requires us to make a choice of degree.”