The First Text Cuts the Deepest: Eleventh Circuit Aligns with Other Circuits on TCPA Standing

On July 24, 2023, an en banc Eleventh Circuit joined the majority of circuits to find that just one text is sufficient to establish standing to bring a Telephone Consumer Protection Act (“TCPA”) claim. The decision, Drazen v. Pinto, --- F.4th ---, 2023 WL 4699939 (11th Cir. July 24, 2023), not only undoes the panel’s original holding, but also reverses course from the Eleventh Circuit’s prior decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which held that a Plaintiff who received a single text message did not have TCPA standing.  

The original Drazen panel applied the Salcedo precedent when it dismissed an appeal by a class objector regarding the attorneys’ fees awarded and type of settlement approved by the district court. Relying on Salcedo, the panel answered an unasked question by the appellant-objector and held that the class definition approved by the district court must be revisited because it improperly included individuals who received a single text message. The appellant-objector sought rehearing en banc, urging the Eleventh Circuit “to reevaluate the Salcedo holding and to clarify the law regarding the elements necessary to pursue a TCPA claim.”

The full Eleventh Circuit reversed the panel and Salcedo, joining the Second, Third, Fourth, Sixth, Seventh, Ninth, and Tenth Circuits to hold that “receiving one or two unwanted texts or phone calls” causes concrete injury under the TCPA. Despite acknowledging that “an unwanted text message is insufficiently offensive” to satisfy a common law claim, the Drazen court joined the federal circuit majority, stating “Congress has used its lawmaking powers to recognize a lower quantum of injury necessary to bring a claim under the TCPA.”  

The decision marks yet another reminder to consumer facing companies that there is no such thing as a freebie under the TCPA: even one errant text via automated dialer can result in costly liability as TCPA plaintiffs continue to pursue relief on a class basis.