[UPDATED] BREAKING TCPA NEWS: Eleventh Circuit COA Holds Receipt of Unwanted Text Message Does Not Per Se Convey Article III Standing in TCPA Suit

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Update at 1:06 pm pacific: Plaintiff’s lawyer Billy Howard remarked about the ruling to TCPAWorld.com today: “I imagine defense lawyers will spend millions trying to convince the judiciary, their clients and themselves that somehow this is the end of the TCPA World as we know it. I’ve heard that position before, a few times.

A careful read illustrates the 11th Circuit agrees that 1 text or 1 call is enough for standing. Facts matter.”

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Analysis appears to follow arguments developed by Squire’s TCPA team in the past:

“Salcedo has not alleged anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone. Nor has he alleged that his cell phone was searched, dispossessed, or seized for any length of time. Salcedo’s allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real but intangible harms. The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts. All told, we conclude that Salcedo’s allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.”

Decision will be published and looks to be real game changer that may (finally) end TCPA class actions in federal court.

Ruling should also mean that consumers can only recover for specific text messages causing actual disruption or harm. Should massively cut down on available damages in individual TCPA suits. Impact on phone call suits to be assessed.

ANALYSIS HERE.

Opinion here: Eleventh Circuit Spokeo Decision

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. This opinion makes no sense in so many different ways. For example, I like how the court said it’s standing analysis is “qualitative” and definitely not “quantitative,” only to then spend the entire opinion explaining how Mr. Salcedo just didn’t receive enough annoying, distracting, and invasive messages, just didn’t become annoyed or distracted enough times, and just didn’t have enough of his time wasted, to satisfy some unspecified and in any event totally made up threshold level of concreteness. That’s about as quantitive (and thus obviously erroneous) as you can get in an analysis, a point perhaps best illustrated by Judge Pryor’s concurrence. Would be shocked if this isn’t reheard en banc.

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  2. Pingback: Try Try Again: Plaintiff Seeks En Banc Review in Huge TCPA Text Message Standing Suit – TCPAWorld

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