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).
This unanimous en banc decision realigns the Court with its sister circuits. In rationalizing this turnaround, the Eleventh Circuit compared the harm from receiving a single unwanted, illegal text message with the harm that underlies a lawsuit for the common-law claim of intrusion upon seclusion. The Court found that both harms “reflect an intrusion into the peace and quiet in a realm that is private and personal.” The Court rejected the argument that the relationship between the two types of harm was insufficiently close because the common law tort requires a privacy invasion to “be highly offensive to a reasonable person.” In response, the Court stated that Congress may decide what degree of harm is enough so long as the harm is similar in kind to the traditional harm. Thus, while a single unwanted text message may not “be highly offensive to the ordinary reasonable man,” it “is nonetheless offensive to some degree to a reasonable person.” (emphasis added). As such, “the harm associated with an unwanted text message shares a close relationship with the harm underlying the tort of inclusion upon seclusion,” and receipt of such a text message causes a concrete injury.
This decision will likely impact the outcome of a related appeal in Muccio v. Global Motivation, Inc., No. 23-10081 (11th Cir. appeal docketed Jan. 9, 2023). In that case, the Eleventh Circuit was asked to address whether Article III injury exists for plaintiffs alleging receipt of multiple text messages in violation of the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059), rather than the federal TCPA. Although the appellee’s brief was due on May 24, 2023, and has not yet been filed, the appeal remains pending.
However, it remains to be seen how potential litigants will square the Eleventh Circuit’s Drazen decision with the recent decision by a Florida state appellate court in Pet Supermarket, Inc. v. Eldridge, 360 So. 3d 1201 (3d Fla. Dist. Ct. App. 2023). See our prior discussion of Pet Supermarket here. There, the Florida appellate court rejected the plaintiff’s contention that he had sufficiently alleged a concrete injury under the TCPA, holding that the only text that had “arguably” intruded upon his private space did not rise to the level of “outrageousness” required for an invasion of privacy (intrusion upon seclusion).
We will continue to keep you posted on this and all the latest updates surrounding TCPA and FTSA in Florida and the Eleventh Circuit.