Eleventh Circuit: A Single Text Message Was Insufficient to Establish Standing

Last week, in Salcedo v. Hanna, the Eleventh Circuit held that a plaintiff lacked standing to pursue TCPA allegations against a law firm that sent him a single text message advertisement.

Like many TCPA plaintiffs, Salcedo argued that he suffered a concrete injury because the text message was an invasion of privacy, interfered with his right to enjoy the full utility of his cellular device, and wasted his time. He supported his allegations by citing the Eleventh Circuit’s opinion in Palm Beach Gold Center v. John Sarris, which held that a plaintiff had standing for a TCPA lawsuit after he received a single unsolicited fax.

In Salcedo, the Court distinguished Palm Beach, drawing a distinction between a fax (presents an opportunity cost because it ties up the fax machine) and a text message (does not tie up the cell phone). It similarly drew a distinction between the cost allegations in Salcedo (plaintiff did not allege direct costs) and Palm Beach (plaintiff alleged the loss of ink, paper, toner, etc.). Although the Court acknowledged that wasted time and invasions of privacy may constitute concrete harms, it held that Salcedo’s allegations did not meet this threshold. With respect to invasion of privacy, the Court noted that the TCPA’s legislative findings only cover telephone calls. The “judgment of Congress is ambivalent at best” as to text messages.

Importantly, the Court held that the test of harm is qualitative, not quantitative. It’s tempting to interpret Salcedo to mean that a plaintiff never has standing to sue for a single text message; however, the ruling is not so broad. The Court simply found that Salcedo’s specific allegations were insufficient to constitute concrete harm. Other courts, including the Ninth Circuit, have reached contrary conclusions in similar cases. Nonetheless, Salcedo provides defense attorneys with great precedent to attack Article III standing and/or defeat class certification (on grounds that too many individualized inquiries are necessary to assess harm) in TCPA lawsuits involving text messages.

* Ali Najaf contributed to this post.