In Drazen v. Pinto, the Eleventh Circuit ruled that a single unsolicited text message sent in violation of the Telephone Consumer Protection Act (“TCPA”) caused sufficient injury to confer standing to sue in federal court.
This case began when Drazen filed a complaint against GoDaddy.com in federal court, alleging that GoDaddy had violated the TCPA when it called and texted Drazen solely to market its services and products through a prohibited automatic telephone dialing system. Drazen’s case was consolidated with similar cases and treated as a class action. After negotiating with GoDaddy, the plaintiffs submitted a proposed class settlement agreement to the district court which would define the class, in relevant part, as “[a]ll persons within the United States who received a call or text message to his or her cellular telephone from Defendant from November 4, 2014 through December 31, 2016.” When a question was raised as to the standing of class members who received only one unwanted message, the district court determined that only the named plaintiffs must have standing and approved the class and proposed settlement. A class member objected and appealed.
On appeal, a panel of the Eleventh Circuit initially reversed because the class definition was defective, observing that, under prior precedent, “a single unwanted text message is not sufficient to meet the concrete injury requirement for standing. So, the class definition cannot stand to the extent that it allows standing for individuals who received a single text message from GoDaddy.” The Eleventh Circuit subsequently vacated the panel’s decision and ordered rehearing en banc, requesting specific briefing on the following issue: Does the receipt of a single unwanted text message constitute a concrete injury sufficient to confer Article III standing under the TCPA?
The Florida Justice Reform Institute submitted an amicus curiae brief for consideration during the en banc rehearing. In its brief, the Institute argued that receipt of a single unwanted text message was not enough to confer standing, as such a bare statutory violation lacks a close relationship to the harm required to find standing to sue under similar torts. For example, under the comparable, common-law tort of intrusion upon seclusion, there is no liability for one, two, or three phone calls.
Unfortunately, the Eleventh Circuit disagreed, ruling that a single unwanted text message is enough to create concrete injury and standing to sue under the TCPA. The Court was also swayed by the fact that every other circuit court of appeals to have considered the question had reached a similar result.
The Institute was represented by William W. Large and Jason Gonzalez, Jessica Slatten and Amber Stoner Nunnally of Shutts & Bowen LLP.