The question at the core of this appeal is:
“Whether the plaintiffs who received a single unwanted, illegal telemarketing text message suffered a concrete injury. To answer that question, we consider whether the harm from receiving such a text message shares a close relationship with traditional harm.”
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In Drazen v. GoDaddy, the plaintiff alleged that GoDaddy violated the Telephone Consumer Protection Act (“TCPA”) by sending a single automated telemarketing text message. In 2019, the Eleventh Circuit in Salcedo v Hanna, 936 F.3d 1162 (11th Cir. 2019), held that the “receipt of a single text message” is not a concrete injury sufficient to confer standing under Article III of the United States Constitution.
In a surprising turn, the Drazen Court receded from its opinion in Salcedo and held that a single unwanted text message is, in-fact, sufficient to support Article III standing. In its opinion, the Court drew parallels between the harm caused by an unwanted text message and the long-standing common-law tort of intrusion upon seclusion. The Court reasoned that an unwanted text message is akin to “an intrusion into peace and quiet in a realm that is private and personal.”
The Court’s sudden about-face will certainly trigger an increase in TCPA litigation nationwide and will provide consumers with an avenue to pursue damages from a single text or phone call. The Drazen decision will likely also be applied to other consumer protection statutes such as the Fair and Accurate Credit Reporting Act (“FCRA”) which has also been scrutinized under Article III. Overall, Drazen will likely lead to an increase in consumer protection litigation and class actions.
Entities utilizing telemarketing and text messaging for marketing purposes should exercise caution and consult a lawyer to ensure that they are in compliance with the TCPA and other consumer protection regulations.
Takeaway: The 11th Circuit Court held that a plaintiff who receives an unwanted, illegal text message suffers a concrete injury because the harm reflects an intrusion into the peace and quiet in a realm that is private and personal.
