Standing to Sue for Unsolicited Text Messages

Legal Alert

September 5, 2019

In Salcedo v. Hanna, Case No. 17-14077 (decided August 28, 2019), Mr. Salcedo had received a single unsolicited text message from his former lawyer offering a discount on services. Mr. Salcedo sued Mr. Hanna alleging that the unsolicited text message violated the Telephone Consumer Protection Act of 1991 (TCPA). The TCPA imposes statutory damages of $500 per text, which can be trebled for a text sent knowingly or willfully. Mr. Salcedo sought to represent a class of former clients of Mr. Hanna who had also received such unsolicited text messages. But, did Mr. Salcedo have “standing" to sue?

The United States Court of Appeals for the Eleventh Circuit answered "no." Federal courts can consider only “cases" and “controversies." Supreme Court precedent recognizes that a plaintiff presents a true case or controversy in federal court only when that plaintiff has suffered a genuine injury as a consequence of the defendant's actions. The Eleventh Circuit concluded that Mr. Salcedo had not suffered such an “injury in fact." The single text message imposed no costs on him, did not consume any of his resources and did not waste any of his time. Receiving a single text message was not sufficiently offensive as to be an invasion of privacy. Therefore, even if the text message violated the TCPA, Mr. Salcedo could not sue because he had not suffered an "injury in fact."

The decision may leave open the argument that receiving multiple unsolicited text messages from the same sender might be sufficiently offensive to amount to an invasion of privacy and confer standing to sue.

Standing to sue is an issue heavily litigated in recent federal court cases. Something that may technically violate the law nevertheless does not confer on a plaintiff a cause of action because the plaintiff suffered no real injury as a result of that legal violation. This issue will continue to be raised in federal courts.

The opinion is available at http://media.ca11.uscourts.gov/opinions/pub/files/201714077.pdf