Recently, the Eleventh Circuit remanded a TCPA suit for the district court to rule on Article III standing, finding that the trial court should have addressed the standing issue because plaintiffs failed to plead the number of telephone calls allegedly received.
Sixteen plaintiffs in Evans v. Ocwen Loan Servicing, LLC, No. 21-14045, 2022 WL 17259718 (11th Cir. Nov. 29, 2022), alleged that defendants violated the TCPA by using an Automated Telephone Dialing System (ATDS) to call them. The complaint included the exact number of calls allegedly received by only eight of the plaintiffs, and stated “that the ‘[e]xact number of calls’” received by the other eight was “‘not confirmed at this point.’” Id. at *1. The district court dismissed, concluding that the system at issue was not an ATDS. The Court of Appeals vacated and remanded, however, finding that the district court failed to address “a significant jurisdiction issue.” Id.
The court explained that recent Eleventh Circuit precedent establishes that the receipt of more than one unwanted call is sufficient to establish the concrete injury necessary for standing, but the Eleventh Circuit rulings do not “address whether a single call is sufficient to confer [Article III] standing.” Id. (citing Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020) and Cordoba v. DIRECTV, LLC, 946 F.3d 1259, 1270 (11th Cir. 2019)). Thus, the appellate court reasoned, “the resolution of the standing question could differ depending on how many calls each plaintiff is alleged to have received.” Id. Because the complaint did not specify the number of calls allegedly received by eight of the plaintiffs, the court reasoned that they could have received “zero, one, or more than one,” and each option “would potentially present a different resolution to the standing issue.” Id. Accordingly, the court vacated the district court’s dismissal (without reaching the ATDS issue) and remanded to the district court to address Article III standing.
Interestingly, the Evans court did not cite Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which, as we reported on here, held that receipt of a single text message does not constitute the concrete injury needed for Article III standing. The failure to address Salcedo leaves open the possibility that the Eleventh Circuit could impose a different standard for calls and texts (a possibility further suggested because Salcedo emphasized that Congress did not address text messages in the TCPA because text messages did not exist when the statute was enacted). Regardless of how the standing issue is ultimately resolved though, the Evans decision still emphasizes the need for plaintiffs to be specific in pleading the number of communications received, particularly in jurisdictions that have either suggested or held that this number impacts standing. Further, defendants should consider whether to challenge standing (in light of overall case strategy) when the complaint fails to allege specific facts that would preclude this defense.