Category - "Standing"

Washington Federal Court Finds Sufficient Allegations of Prerecorded Calls But Dismisses Claims for Treble Damages and Injunctive Relief

Recently, a federal judge in the United States District Court for the Western District of Washington granted in part a motion to dismiss a TCPA claim in a putative class action. The Court found that although the plaintiff plausibly alleged that he received multiple calls using a prerecorded voice, he did not sufficiently allege facts to support his request for either treble damages or injunctive relief. Blair v. Assurance IQ LLC, No. 2:23-00016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023).

The plaintiff claimed that he received 12 unsolicited calls, one of which he answered, and three of which resulted in voicemails. He alleged that the latter four calls used a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect,” and because all of the voicemails were “identical.” In its motion to dismiss, the defendant argued that the Court could not reasonably infer that the voice the plaintiff allegedly heard was either prerecorded or live because the plaintiff failed to specify “what about the tone, cadence, and timing” indicated that the call was prerecorded. The Court rejected this argument, however, finding that the allegation of an “unnaturally perfect” voice was enough at the pleadings stage to infer that it was artificial or prerecorded. The Court also held that although the plaintiff “could have expounded more” on how the voicemails were identical (e.g., the tone and cadence of the voice), the fact that the voicemails had “suspicious timing” (they were left at the exact same time on three separate days) and contained “generic content” (identical sales pitches) was enough to infer the use of an artificial or prerecorded voice.

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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In a per curiam unpublished opinion, the Eleventh Circuit recently held that a plaintiff had standing to assert claims under the Florida Telephone Solicitation Act (“FTSA,” Fla.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 Muccio v. Global Motivation, Inc., No. 23-10081, 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished).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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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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Florida Appeals Court Finds Lack of Standing in State Court TCPA Case

Florida’s Third District Court of Appeal recently reversed class certification and directed dismissal, holding that the plaintiff had failed to establish any concrete harm from an alleged violation of the TCPA and thereby lacked standing. Pet Supermarket, Inc. v. Eldridge, No. 3D21-1174, 2023 WL 3327267 (3d Fla. Dist. Ct. App. May 10, 2023). (Note that this opinion has yet to be released for publication in the permanent law reports, as a motion for rehearing, clarification, or certification, or a petition for review, may be pending.)

Eldridge had visited the defendant’s store, where he learned about a promotion in which customers could win free dog food for a year if they enrolled in the defendant’s text-message program. After enrolling, Eldridge immediately received two texts, and then received an additional five texts over a period of six months. All the texts contained the message “Reply STOP to end” and concerned promotional or advertisement information.

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Florida District Courts Increasingly Staying FTSA Cases as 11th Circuit Threatens to Overturn Salcedo

Plaintiffs’ attempts to keep FTSA cases venued in Florida state courts are being upended by the Eleventh Circuit’s recent decision to revisit en banc its Article III standing precedent in single-text message cases. Previously, Florida district courts were generally remanding such cases to state court. Since then, a couple of district courts have remanded cases to state court, but several more have stayed cases pending the Eleventh Circuit’s decisions in two pending appeals, Drazen v. Pinto, No. 21-10199 (11th Cir.) and Muccio v. Global Motivation, Inc., No. 23-10081 (11th Cir.). And the momentum appears to be in favor of staying such cases.

On April 11, Judge Honeywell of the Middle District of Florida granted a defendant’s unopposed motion to stay in Read v. Coty DTC Holdings, LLC,  pending the resolution of Drazen and Muccio. No. 8:23-cv-00662-CEH-MRM, 2023 WL 3431820 (M.D. Fla. Apr. 11, 2023). The plaintiff in Read had alleged receipt of a single text message in violation of the FTSA. Eleventh Circuit precedent on Article III standing holds that a plaintiff’s alleged receipt of a single unsolicited text message in violation of the TCPA does not meet the injury requirement for Article III standing. See Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). However, the Eleventh Circuit recently vacated a panel decision that had reaffirmed that precedent to re-evaluate its application en banc. See Drazen. Additionally, another appeal before the Eleventh Circuit will address whether Article III injury exists for plaintiffs alleging receipt of multiple texts, not just one, and who allege a violation of the FTSA, not the TCPA. See Muccio. Against this backdrop, the Read court found that the Eleventh Circuit was an outlier with the holdings of other Courts of Appeal that have found standing does exist based on an unsolicited text message. Additionally, the court noted that the Eleventh Circuit’s precedent on this issue appears to have been called into question due to the pending appeals in Drazen and Muccio. As such, the court stayed the case.

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Florida Court Finds One Unwanted Text Message Does Not Cause Concrete Harm, Remands FTSA Case to State Court

In Weitz v. Genting New World LLC, No. 1:22-cv-23209-BLOOM, 2023 WL 2328365, at *1 (S.D. Fla. Mar. 2, 2023), Plaintiff Brandon Weitz brought suit against Defendant Genting New World LLC on behalf of himself and a putative class in Florida state court, alleging violations of the Florida Telephone Solicitation Act (“FTSA”).  Defendant removed the case to the United States District Court for the Southern District of Florida.  Id.

Sometimes dubbed Florida’s “Mini-TCPA,” the FTSA regulates telemarketing activities within Florida.  The law was designed to protect consumers from unwanted telemarketing calls and ensure that telemarketers comply with certain rules and regulations.  The FTSA prohibits certain acts, such as calling individuals who are on the National Do Not Call Registry, using automatic dialing systems to call emergency phone numbers, and using pre-recorded messages without prior consent.

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The Eleventh Circuit’s Minority View of Article III Results in Dismissal of Another TCPA Case

The District Court for the Southern District of Florida recently dismissed a TCPA lawsuit for lack of Article III standing, holding that five unsolicited text messages did not constitute a concrete injury.  Muccio v. Global Motivation, Inc., __ F. Supp. 3d __, 2022 WL 17969922 (S.D. Fla. Dec. 27, 2022).  In so doing, the court applied the Eleventh Circuit precedent in Salcedo v. Hanna, which held that a single, unsolicited text message did not itself constitute a concrete injury.

In Muccio, the plaintiffs alleged receiving five unsolicited text messages from defendant Global Motivation, Inc.  The complaint alleged that the text messages did not include the ability to opt-out of future messaging and failed to identify the name of the sender or include the sender’s contact information.  The court decided the motion on Article III standing.  The mere existence of a statutory right, the court explained, even if violated, does not excuse the need for a plaintiff to allege a concrete injury.  The complaint, however, merely sought to redress “inconvenience, invasion of privacy, annoyance, and violation of their statutory rights.”  Applying the rule set forth in Salcedo v. Hanna, the Muccio court dismissed the suit without prejudice for failure to allege a concrete injury.

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Eleventh Circuit Finds Complaint’s Ambiguity in Number of Calls Received Warrants Remand for Article III Standing Analysis

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.

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Recent Ninth Circuit Opinions Address Standing and the Meaning of ‘Automatic Telephone Dialing System’

The Ninth Circuit recently issued two noteworthy TCPA decisions.  Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space:  the definition of “automatic telephone dialing system” (“ATDS”).  Shortly before that, in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), the Ninth Circuit discussed both Article III and statutory standing.

Borden and the ATDS Definition

In a unanimous opinion, the Ninth Circuit recently affirmed the dismissal of a text message TCPA suit based on its holding that to qualify as an ATDS, dialing equipment “must generate and dial random or sequential telephone numbers,” not just any numbers.  See Borden, 2022 WL 16955661, at *1.

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Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant

The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley.  See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022).

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