The federal Telephone Consumer Protection Act (TCPA) was enacted in response to the growing outcry of consumers concerning intrusive telemarketing and debt collection calls. It was intended to reduce the number of nuisance communications that consumers received. Perhaps not surprisingly, the TCPA also has resulted in a groundswell of litigation in New York and in other jurisdictions around the country, including by individuals or classes who claimed to have been the recipients of unsolicited spam text messages in violation of the TCPA.

Recent New York court decisions involving these allegations include George v. Shamrock Saloon II LLC, No. 17-CV-6663 (RA) (S.D.N.Y. Jan. 13, 2020); Duran v. La Boom Disco, 369 F. Supp. 3d 476 (E.D.N.Y. 2019); Forney v. Grand Island Chiropractic, P.C., No. 18-CV-616 (W.D.N.Y. Nov. 8, 2019); Schleifer v. Lexus of Manhattan, No. 17-cv-8789 (AJN) (S.D.N.Y. Sept. 24, 2019); Arnaud v. Doctor's Associates, No. 18-CV-3703 (NGG) (SJB) (E.D.N.Y. Sept. 10, 2019); Simon v. Ultimate Fitness Group, No. 19 Civ. 890 (CM) (S.D.N.Y. Aug. 19, 2019); Gerrard v. Acara Solutions, No. 18-CV-1041V(F) (W.D.N.Y. June 27, 2019); and Battaglia v. Quicken Loans, No. 18-CV-1104 (W.D.N.Y. Feb. 4, 2019).

Text message cases under the TCPA raise numerous legal issues, of course. However, the first issue that always must be addressed in all cases, including those involving the TCPA, is whether the plaintiff has standing to bring such an action. Standing, as we all recall, requires the plaintiff to demonstrate that he or she has suffered an actual injury that is fairly traceable to the acts of the defendant and that is likely to be redressed in the context of the litigation.

Last April, in Melito v. Experian Marketing Solutions, 923 F.3d 85 (2d Cir. 2019), the U.S. Court of Appeals for the Second Circuit found standing for plaintiffs who alleged their receipt of numerous unwanted texts as their only injury for purposes of a claim under the TCPA. Thus, following Melito, it seems clear that, in the Second Circuit at least, multiple text messages are sufficient to demonstrate standing in a case asserting claims under the TCPA. (It is worth noting that Facebook has asked the U.S. Supreme Court to consider the TCPA's constitutionality in Duguid v. Facebook, 926 F.3d 1146 (9th Cir. 2019)).

Melito, however, did not specifically address how many text messages a plaintiff had to allege that he or she had received to be able to bring suit. Are multiple text messages required? What about two? What about one?

Various New York court decisions have involved allegations of two text messages (see, e.g., Rotberg v. Jos. A. Bank Clothiers, 345 F. Supp. 3d 466 (S.D.N.Y. 2018) (plaintiff alleged that he received "several" text messages from defendants but based his TCPA claims on two); Getz v. Verizon Communications, No. 18cv4652 (DLC) (S.D.N.Y. Oct. 24, 2018) (two text messages alleged)), and some even have involved allegations of one text message (see, e.g., Latner v. Mount Sinai Health System, 879 F.3d 52 (2d Cir. 2018) (one flu shot reminder text allegedly sent by hospital); Bank v. Simple Health Plans, No. 18-CV-6457 (MKB) (ST) (E.D.N.Y. Dec. 12, 2019) (plaintiff allegedly received one text message and alleged defendants were responsible for sending texts to "thousands of others"); Metten v. Town Sports Int'l, No. 18-CV-4226 (ALC) (S.D.N.Y. March 21, 2019) (plaintiff allegedly received one text message and asserted that defendants sent "significant number" of similar texts to others around the country)). None of these decisions, though, has directly addressed the question of the number of text messages necessary to establish standing.

 'Salcedo'

After the Second Circuit's decision in Melito, the U.S. Court of Appeals for the Eleventh Circuit issued a decision on standing under the TCPA in a case involving a single text message. In that case, Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), the Eleventh Circuit ruled that a single text message did not afford standing to the plaintiff. The Eleventh Circuit's well-reasoned opinion may influence standing jurisprudence beyond that circuit. Perhaps more importantly, it may suggest the need for a plaintiff to assert receipt of multiple unwanted and unsolicited text messages to have standing to sue under the TCPA.

In the Salcedo case, the plaintiff's sole predicate for the claim was that he had received a text message from his former attorney at 9:56 a.m. on Aug. 12, 2016 offering a 10 percent discount on legal services.

The plaintiff sued the attorney and his firm in the U.S. District Court for the Southern District of Florida as the representative of a putative class of former clients who received unsolicited text messages, alleging violations of the TCPA. The plaintiff sought, among other relief, statutory damages of $500 per text message and treble damages of $1,500 per text message sent willfully or knowingly.

The defendants moved to dismiss the plaintiff's complaint for lack of standing. The district court denied the motion, and the dispute reached the Eleventh Circuit.

Eleventh Circuit's Decision

In its decision, the circuit court, citing to the U.S. Supreme Court's ruling in Spokeo v. Robins, 136 S. Ct. 1540 (2016), explained that, to establish Article III standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The circuit court then examined the first element, which was disputed by the parties, in great detail.

The Eleventh Circuit observed that, for purposes of establishing standing, an injury in fact, among other things, must be "concrete." Even an "identifiable trifle" may be concrete, it added.

The circuit court pointed out that the plaintiff alleged that receiving the one text message had caused him "to waste his time answering or otherwise addressing the message. While doing so, both [the plaintiff] and his cellular phone were unavailable for otherwise legitimate pursuits." The Eleventh Circuit added that the plaintiff further alleged that the message also had "resulted in an invasion of [the plaintiff's] privacy and right to enjoy the full utility of his cellular device."

The Eleventh Circuit found that the plaintiff's allegations were "qualitatively different" from those that it previously had decided were sufficient in Palm Beach Golf Center-Boca v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015). In that case, the Eleventh Circuit found standing for a plaintiff who alleged that he had been harmed by receiving a single junk fax in violation of the TCPA.

According to the circuit court, during the minute or so that it took the plaintiff in the junk fax case to receive and process the fax message, his fax machine was unavailable for receiving legitimate business messages. Moreover, the Eleventh Circuit reasoned, faxes consumed paper and ink or toner.

Contrasting the junk fax case to Salcedo's alleged receipt of a text message, the Eleventh Circuit pointed out that the text message Salcedo allegedly had received used "no paper, ink, or toner" and that he did not allege that the text had "cost him any money."

The circuit court also rejected the plaintiff's argument that he had suffered intangible costs as a result of the text message, reasoning that a fax used "a minute of fax machine time" while a text wasted the plaintiff's time "only generally." Moreover, the circuit court continued, a fax consumed the receiving device "entirely," while a text consumed the receiving device "not at all." A cell phone user, the circuit court said, "can continue to use all of the device's functions, including receiving other messages, while it is receiving a text message." Put differently, the Eleventh Circuit stated that a fax machine's inability to receive another message while processing a junk fax had "no analogy with cell phones and text messaging."

Next, the circuit court turned to the TCPA's legislative history. It found that Congress' legislative findings about telemarketing suggested that the receipt of a single text message was "qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA." In particular, the circuit court added, the findings showed a concern for privacy within the sanctity of the home that did "not necessarily apply to text messaging." The circuit court explained that "a single unwelcome text message will not always involve an intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does."

The Eleventh Circuit also rejected the argument that Congress sought to protect consumers "from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements." According to the Eleventh Circuit, "isolated text messages not received at home" did not necessarily come within that concern of Congress and the contention that Congress identified "unsolicited contact as a concrete harm" was a "broad overgeneralization of the judgment of Congress."

The Eleventh Circuit concluded that the single text message allegedly sent to Salcedo amounted to an "isolated, momentary, and ephemeral harm," and that "[s]imply sending one text message to a private cell phone" was not closely related to the "severe kinds of actively intermeddling intrusions" contemplated by the traditional tort of invasion of privacy.

Accordingly, the Eleventh Circuit concluded that Salcedo's allegations did not state a concrete harm that met the injury-in-fact requirement of Article III, and it reversed the district court's decision.

Conclusion

At the end of its decision, the Eleventh Circuit explained that its assessment of "injury" was "qualitative, not quantitative." That may suggest that, in certain instances, the Eleventh Circuit could find that two text messages are insufficient to support a plaintiff's standing—and that it might even conclude that multiple text messages are not enough to allow a plaintiff to bring suit under the TCPA.

It will be interesting, to say the least, to see if courts in New York (and elsewhere) adopt the Eleventh Circuit's analysis to cases involving one text message. Of perhaps greater practical interest, though, is whether courts will find it applicable to cases involving more than a single text message. Might the Salcedo rationale affect the Second Circuit's thinking, even after its decision in Melito? That remains to be seen. But at least one thing is clear: The issue of standing in text-related TCPA cases remains in flux.

Shari Claire Lewis, a partner in the Long Island office of Rivkin Radler, can be reached at [email protected].