Last week, the Eleventh Circuit ruled that a single unsolicited text message doesn’t meet the harm requirement necessary to proceed with a Telephone Consumer Protection Act (TCPA) claim.   The Eleventh Circuit ruling, Salcedo v. Hanna, reverses a decision by a lower court allowing the plaintiff to move forward with a TCPA claim on grounds that he received an unsolicited text message from his former attorney.

“The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly [waved] in one’s face,” Circuit Judge Elizabeth L. Branch opined for the Eleventh Circuit three-judge panel. “Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.”

In reaching its conclusion, the Eleventh Circuit panel drew from the legislative history of the TCPA, its own precedent and the Supreme Court’s decision in Spokeo v. Robins which emphasized that in order to meet the Article III standing requirement, a concrete injury must be alleged.

While we often report on the growing circuit split stemming from Spokeo in the context of data breach litigation, due its lack of clarity on what constitutes a concrete injury (see here and here), the Spokeo ruling has generated a similar circuit split in the context of the TCPA. For example, in 2017 the Ninth Circuit concluded that receiving two unsolicited text messages was sufficient to meet the Spokeo standard for a concrete injury. The Eleventh Circuit panel was not persuaded by the Ninth Circuit’s reasoning, highlighting that the Ninth Circuit,

“…stopped short of examining whether isolated text messages not received at home come within that judgment of Congress. Instead, it concluded that ‘Congress identified unsolicited contact as a concrete harm’… We disagree with this broad overgeneralization of the judgment of Congress.”  

The Eleventh Circuit did not quantify how many unsolicited text messages, if any, would be enough to satisfy the concrete harm requirement to establish standing under the TCPA. The Eleventh Circuit decision may suggest that TCPA text messaging class actions are no longer possible, at least in the Eleventh Circuit. However until the Supreme Court weighs in, by clarifying its ruling in Spokeo, we will continue to see a lack of consistency across the circuit courts, both in the TCPA and data breach litigation contexts.

Although the Eleventh Circuit concluded that a single unsolicited text message did not meet the actual harm requirement necessary to sustain a TCPA claim, any organization that uses text messaging for promotional marketing purposes, should be mindful of the legal and regulatory guidelines that govern text message communications. Likewise, when contracting out these services, companies should ensure that their vendors are compliant with all regulatory requirements.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.