Eleventh Circuit Expands on Drazen II, Holding that an Unwanted Text is Sufficient for FTSA Standing

In a per curiam unpublished opinion, the Eleventh Circuit recently held that a plaintiff had standing to assert claims under the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) for his receipt of five unsolicited telemarketing text messages. Muccio v. Global Motivation, Inc., No. 23-10081, 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished).

In reaching that conclusion, the Eleventh Circuit applied its recent en banc decision in Drazen II, which held that a single unwanted illegal telemarketing text message is sufficient to allege a concrete injury under the TCPA. See Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc). See our prior discussion of Drazen II here.

Drazen II explained that “the Constitution empowers Congress to decide what degree of harm is enough [for standing] so long as that harm is similar in kind to a traditional harm.”

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Ninth Circuit “Voices” Its Rejection of Plaintiff’s Attempt to Expand TCPA

The Ninth Circuit recently rejected the argument that a text message qualifies as an “artificial or prerecorded voice” under the TCPA.  See Trim v. Reward Zone USA LLC, 2023 WL 5025264, 2023 U.S. App. LEXIS 20445 (9th Cir. Aug. 8, 2023).

There, the plaintiff alleged that the defendant had violated the TCPA by sending text messages with promotional offers without her consent.  Specifically, she alleged that the defendant had sent her a message stating:  “Hiya Lucine, you are a valuable customer.  In these tough times, let us [] reimburse [you] for your shopping needs.”

As you may recall, the TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using . . . an artificial or prerecorded voice . . . to any telephone number assigned to a [ ] cellular telephone service. . . .”  47 U.S.C. § 227(b)(1)(A)(iii).

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Eleventh Circuit Overturns Salcedo, Holding that One Text is Sufficient for TCPA Standing

In a unanimous en banc decision, the Eleventh Circuit recently held that “a single unwanted, illegal telemarketing text message” is sufficient to allege a concrete injury under the TCPA. Drazen v Pinto, No. 21-10199, 2023 WL 4699939 (11th Cir. July 24, 2023) (en banc).

Previously, the leading Eleventh Circuit precedent on Article III standing in text-message cases held that a plaintiff’s alleged receipt of a single unsolicited text in violation of the TCPA “d[id] not state a concrete harm that meets the injury-in-fact requirement of Article III.” Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). See our prior discussion of Salcedo here. Based on Salcedo, an Eleventh Circuit panel previously dismissed the Drazen appeal for lack of jurisdiction, holding that the class definition did not meet Article III standing requirements because it included individuals who had received only a single text message. See our prior discussion of the Drazen panel decision here. The Salcedo opinion made the Eleventh Circuit an outlier of one, with every other federal appellate court to consider the question reaching the opposite conclusion. See Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686, 690 (5th Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020) (Barrett, J.); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 93 (2d Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017).

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