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

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.”


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.


Opinion here: Eleventh Circuit Spokeo Decision



  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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