Happy Monday TCPAWorld! Bringing you REALLY HUGE news out of Florida!
Gone are the days when receipt of a single message was sufficient to defeat Article III standing in the Eleventh Circuit. GOODBYE, Salcedo!
And Hello again, Drazen v. Pinto. Now, Drazen isn’t new.
Back in 2019, Drazen filed a class action against Go-Daddy alleging an unlawful telemarketing campaign. In 2020, the district court citing Salcedo v. Hanna, the court held that the receipt of a single text message is not a concrete injury, issued a sua sponte order to examine its own jurisdiction. 936 F.3d 1162 (11th Cir. 2019).
Upon considering the parties’ briefing, the court concluded that only the named plaintiffs had standing and that the nationwide class members who received only one text message lacked a viable claim. Although the nationwide class members’ claims were meritless under Salcedo, the district court held that GoDaddy could settle those claims because those class members had a viable claim in their respective courts.
And here it is, the writing on the wall!
Embedded in a footnote, the court disagreed with the district court’s contention that those claims were meritless simply because plaintiff lacked standing “under our precedent.” Followed by, “In any case, our ruling today moots the issue.”
And that issue is:
“Whether a person who receives an unwanted, automated telemarketing text message has standing to sue the sender.”
To establish standing, a plaintiff must show that she has suffered an injury in fact, which the defendant likely caused and which a favorable decision can likely redress. The standing’s injury-in-fact component requires that a plaintiff’s injury be concrete. An invasion of privacy, for example, may satisfy the concreteness requirement.
The Court noted that Congress’s judgment is instructive when it creates a cause of action for an intangible harm but not necessarily dispositive. As such, the Court considered whether the statutory harm shares a “close relationship” with a harm that has traditionally provided a basis for a lawsuit in American courts.
So, the question at the core of this appeal is:
“Whether the plaintiffs who received a single unwanted, illegal telemarketing text message suffered a concrete injury. To answer that question, we consider whether the harm from receiving such a text message shares a close relationship with a traditional harm.”
The concreteness inquiry centers on whether the harms share a close relationship. To find the sweet spot between similar yet not identical, the Seventh Circuit held that the inquiry is whether the harms share “a ‘close relationship’ in kind, not degree.” Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020)
Relying on its sister Circuit Courts, the Court held that the focus is on kind but not degree. That is, to look to the “types of harms protected at common law, not the precise point at which those harms become actionable.” Seven of the sister circuits have declined to consider the degree of offensiveness and instead, have held that receiving either one or two unwanted texts or phone calls resembles the kind of harm associated with intrusion upon seclusion.
Intrusion upon seclusion consists of the following elements: (i) intentional intrusion (ii) into another’s solitude or seclusion, (iii) which would be highly offensive to a reasonable person.
And while a single unwanted text message may not “be highly offensive to the ordinary reasonable man, an unwanted message is nonetheless offensive to some degree to a reasonable person.”
As a final nail in the coffin, the Court noted that even GoDaddy conceded in oral argument that receiving one unwanted text message 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.
So, there you have it. It is not the degree of the injury but rather the kind of injury necessary to establish Article III standing.
Takeaway:
The 11th Circuit Court held that a plaintiff who receives an unwanted, illegal text message suffers a concrete injury because the harm reflects an intrusion into the peace and quiet in a realm that is private and personal. The Court remanded this matter to the panel to consider the rest of the appeal.
Notably, if you are in FL state court, remember Eldridge is still good law – at least for now.
Til next time, Countess!!!
Eldridge only mattered when claims were getting kicked out of federal court because of Salcedo. Who cares what it says while it’s waiting its turn to be overturned.