Eleventh Circuit Reverses Prior Course–Expands TCPA Standing under Art. III

The Eleventh Circuit recently published an en banc opinion, reversing its prior holding and aligning with other Circuits in holding a plaintiff who receives a single, unwanted text message qualifies for Article III standing under the TCPA. 

The initial class action complaint filed in 2019 alleged defendant-company’s campaign violated the TCPA by both calling and texting plaintiffs.  The parties entered into a settlement agreement in which anyone having received a single, unwanted call or text message qualified as a class member.  The district Court issued a sua sponte order examining its own jurisdiction, and concluded that only named plaintiff’s must have standing, thereby disqualifying one named plaintiff but allowing approximately 91,000 class members located in other Circuits who’s only claim stemmed from the receipt of a single text message to remain in the settlement class. 

On appeal by an objector, an Eleventh Circuit panel initially rejected the idea that a class member without standing in the Eleventh Circuit could qualify as part of a nationwide class purely based on standing in a different circuit.  The Eleventh Circuit in an unrelated 2019 TCPA case had held that, in fact, a single text message did not constitute concrete injury under Article III.  This holding not only broke with the precedent of several other circuits, but it also resulted in the Eleventh Circuit panel vacating the district court’s approval of the settlement in the underlying case. 

Plaintiffs moved for a rehearing en banc and the Eleventh Circuit conducted a de novo review of the threshold question regarding jurisdiction.  The court focused on the concreteness requirement of standing and analyzed the concreteness of a single text message under the Supreme Court’s common-law tort of intrusion upon seclusion as a traditionally recognized example of harm.  Although Defendant’s contended that a single text message fell short of the degree of harm necessary to state a claim, the Eleventh Circuit disagreed.  Citing to other circuits that have adopted this approach regarding whether receipt of a single message confers standing, the Eleventh Circuit agreed that the receipt of the unwanted text message resembles the kind of harm associated with the intrusion upon seclusion without regard for the degree of the harm itself.  Therefore, the receipt of a single, unwanted text message constitutes a concrete injury in support of finding standing in the Eleventh Circuit.  The court remanded the objector’s appeal to the panel to consider the remaining issues raised in their appeal.