The Eleventh Circuit recently held that a plaintiff does not suffer concrete injury through receipt of a single ringless voice mail message. Grigorian v. FCA US LLC, No. 19-15026, 2020 WL 7238392 (11th Cir. Dec. 9, 2020).
The Eleventh Circuit previously ruled that receipt of a single, unsolicited text message does not constitute the harm necessary to achieve Article III standing in a Telephone Consumer Protection Act lawsuit. In doing so, a split was created with the Ninth Circuit with respect to the “concreteness” of the harm necessary to establish standing
There, the plaintiff alleged that a single text message caused him “to waste his time answering or otherwise addressing the message,” that it rendered his telephone “unavailable” and that the message was an “invasion of his privacy.” There was no allegation of real, concrete costs.
In so holding, the court examined Congress’s legislative intent and found that Congress’ findings about telemarketing suggest that a single text does not interfere with the privacy of the home in the way contemplated by the TCPA. Importantly, the court did not foreclose the possibility that wasted time could conceivably constitute an injury-in-fact.
More recently, in a matter involving a plaintiff that allegedly received a single ringless voicemail from defendant regarding an automobile commercial offer, the Eleventh Circuit held that there was not a loss of time suffered and the device was not rendered unavailable. The court found that both are required to establish a concrete injury-in-fact.
The implications of this decision are significant when it comes to TCPA class action cases in the Eleventh Circuit. Plaintiffs may have challenges getting a class certified given individualized issues and because damages for single text messages may not each be recoverable based upon receipt alone.
Richard B. Newman is an advertising practices attorney at Hinch Newman LLP.
Informational purposes only. Not legal advice. May be considered attorney advertising.