Recent Eleventh, Seventh and Second Circuit court rulings have some lawyers on edge regarding the possibility that a single unsolicited marketing text message is enough standing to bring a TCPA violation suit.
By Victoria Hudgins, LegalTech News | February 26, 2020
For most, a random text from a company marketing a service or product is annoying. But is that single unsolicited text enough to bring a Telephone Consumer Protection Act (TCPA) violation suit?
As courts debate whether unsolicited text messages can trigger a lawsuit, lawyers say TCPA compliance is still key to avoiding litigation battles.
In 2017, the U.S. Court of Appeals for the Ninth Circuit in Van Patten v. Vertical Fitness Group ignited some fears that one unsolicited marketing text message is sufficient to bring a TCPA violation.
“Unlike in Spokeo [v. Robins], where a violation of a procedural requirement minimizing reporting inaccuracy may not cause actual harm or present any material risk of harm the telemarketing text messages at issue here, absent consent, present the precise harm and infringe the same privacy interests Congress sought to protect in enacting the TCPA,” wrote Judge Ronald Gould in the panel opinion. “Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.”
In contrast, last year the Eleventh Circuit ruled a single, or even a few, text messages didn’t have Article III standing under Spokeo.
The plaintiff’s ”allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real but intangible harms,” the panel wrote in its August 2019 Salcedo v. Hanna opinion.
While lawyers said they were unsure if other circuit courts would take the Eleventh Circuit’s stance, they all agreed compliance with the TCPA is the first step to prevent a violation or lawsuit.
“If companies want to avoid having to defend these claims at all, they should make sure to check their internal procedures and the procedures of the third-party companies they utilize for telemarketing purposes,” explained Mark Migdal & Hayden attorney Yaniv Adar.
The recycled phone number issue is an ongoing challenge companies are dealing with, and in December 2018 the Federal Communications Commission (FCC) announced it was developing a reassigned phone number database to address the problem.
Should litigation be unavoidable, Troutman Sanders partner Virginia Bell Flynn noted if a federal court decides you don’t have Article III standing, the plaintiff can also bring the suit in state court alleging violation of a state’s telemarketing law. Noticeably, Florida, which is in the Eleventh Circuit, has an Article III standing requirement in the state’s constitution, Flynn added.