The U.S. Court of Appeals for the Eleventh Circuit issued a
unanimous opinion in Drazen v. Pinto, No. 21-10199, 2023
U.S. App. LEXIS 18832, at *1 (11th Cir. July 24, 2023), holding
that a single unwanted telemarketing text message created a
concrete injury sufficient to satisfy Article III standing in
Telephone Consumer Protection Act (TCPA) actions.
Plaintiff Suzan Drazen represented a TCPA class action against
Godaddy.com, LLC (GoDaddy) for its use of an alleged prohibited
automatic telephone dialing system (ATDS) to conduct telemarketing
via texts for a period of about two years. After GoDaddy reached a
settlement with the plaintiffs, Drazen filed a motion to approve
the settlement agreement and define the class of people entitled to
compensation. The settlement agreement defined the class to include
any individual who received even a single text message or phone
call on their cellphone from GoDaddy in the specified period.
The district court ultimately approved the settlement but,
following the decision in Salcedo v. Hanna, 936 F.3d 1162 (11th
Cir. 2019), held that those class members who had received only a
single text message lacked standing in the Eleventh Circuit. In
Salcedo, the Eleventh Circuit held that receipt of a single
unwanted text message did not create a concrete injury sufficient
for Article III standing.
On appeal, an Eleventh Circuit panel of Judges Wilson, Branch,
and Tjoflat dismissed the case for lack of jurisdiction, holding
"that the class definition does not meet Article III standing
requirements." Drazen then moved for a rehearing en banc.
The en banc court reversed the panel. It explained that
to show Article III standing, a plaintiff must demonstrate the
existence of a "concrete" injury. One way that courts can
determine whether an injury is "concrete" is by looking
at laws enacted by Congress to address that injury. But Congress
may not use "its lawmaking power to transform something that
is not remotely harmful into something that is." Therefore,
courts must look to whether a harm addressed by Congress bears
"a close relationship to the kind of harm" that the law
traditionally has recognized.
Here, the court found that the same harm addressed by the TCPA
is addressed by the common-law tort of "intrusion upon
seclusion." One element of intrusion upon seclusion is that
the privacy invasion must be "highly offensive to a reasonable
person." GoDaddy argued that the harm from receiving one
unwanted text message lacks a "close relationship" to the
"highly offensive" harm required to prove a claim for
intrusion upon seclusion. The court rejected this argument, and
concluded that the TCPA and the tort of intrusion upon seclusion
both address the same kind of harm, even if they do not address the
same degree of harm. This approach followed the reasoning of the
Seventh Circuit, which also focused on whether the harms share a
relationship "in kind, not degree." The Fourth, Fifth,
Sixth, Ninth, and Tenth Circuits also look to the "types of
harms protected at common law, not the precise point at which those
harms become actionable." The Second and Third Circuits
similarly focus on the "character" of the harm. The court
concluded by observing that a single unwanted text message may not
be "highly offensive to the ordinary reasonable man," but
that an unwanted text is offensive to some degree, and that
"the Constitution empowers Congress to decide what degree of
harm is enough so long as that harm is similar in kind to a
traditional harm." Therefore, the court held that the receipt
of a single unwanted text message causes a concrete injury to
justify standing under the TCPA.
The Drazen decision will drastically affect TCPA
litigation in the Eleventh Circuit. First, until now, the Eleventh
Circuit was an outlier in failing to recognize TCPA standing for a
single text, call, or fax. This meant that defendants sued for TCPA
violations in state court for texts, for example, were being
remanded by the district courts for lack of standing. This decision
will facilitate removal to federal court for defendants in Florida,
Georgia, and Alabama. Second, the "unwanted" requirement
for illegal calls or texts may still preclude standing on a
class-wide basis, since whether a text is "unwanted"
remains an individualized inquiry. Most commonly, the TCPA requires
that "consent" for advertising include "prior
express written consent." Under the Federal Communications
Commission's definition, that also includes an obligation to
make a specific disclosure that consent is not a condition of
purchase. A common argument against class certification for TCPA
claims revolves around the plaintiff's inability to show
concrete injury (i.e., standing) on a class-wide basis due to
members' consent to receive communication. The Drazen decision
preserves that argument. Thus, the lowered requirement for Article
III standing does not necessarily create liability; it merely
brings the Eleventh Circuit in line with the majority view that a
single unwanted text is enough.
Client Alert 2023-170
This article is presented for informational purposes only
and is not intended to constitute legal advice.