Split Decision: 5th and 11th Circuits Diverge on TCPA Standing

Share This Post

Print Friendly, PDF & Email
Share on facebook
Share on linkedin
Share on twitter
Share on google
Share on email

Standing, or the right to bring a lawsuit, is a contentious and often complicated doctrine in the world of the Telephone Consumer Protection Act (“TCPA”). TCPA standing requires that a plaintiff allege a concrete injury beyond just a pure statutory violation. The question raised by a recent opinion from the Fifth Circuit Court of Appeals (covering federal courts in Louisiana, Mississippi, and Texas) is how much of an injury in addition to a statutory violation is necessary to satisfy TCPA standing requirements. The Eleventh Circuit Court of Appeals has held that a plaintiff needs to allege more of a concrete injury than merely “invasion of privacy” for the receipt of unwanted text messages to have standing. In a case captioned Cranor v. Five Star Nutrition, the Fifth Circuit directly disagreed, holding that a statutory violation plus an allegation of “invasion of privacy” or “nuisance” is enough to establish TCPA standing.

What did the Fifth Circuit’s Cranor decision hold?

Cranor made a purchase through Defendant Five Star Nutrition’s website and provided his mobile phone number as part of the transaction. Afterward, Five Star sent him an unsolicited text message offering enrollment in a rewards program. Cranor alleged that this text message violated the TCPA and settled the dispute with Five Star for $1,000. Five Star then sent Cranor another unsolicited text message, leading Cranor to file the lawsuit. The district court dismissed the case, finding that Cranor lacked TCPA standing because he alleged only an invasion of privacy for receiving a single unwanted text message.

On appeal, the Fifth Circuit reversed. The Court found that nuisance avoidance and preventing invasion of privacy are the exact types of harm that Congress intended to prevent in enacting the TCPA. In doing so, the Court directly addressed the Eleventh Circuit’s opinion in Salcedo v. Hanna, which established the heightened standing requirement for Eleventh Circuit courts. Siding with the Second, Third, Seventh, and Ninth Circuits, the Cranor Court explained that the Salcedo opinion focused too narrowly on the idea that traditional tort law would not recognize receipt of a single unwanted text message as the basis for a cause of action for nuisance. In arriving at its decision, the Fifth Circuit reasoned that the Eleventh Circuit’s “focus on the substantiality of an alleged harm threatens to make this already difficult area of law even more unmanageable.”

Why does the Cranor decision matter to your business?

Even to attorneys, standing can seem an esoteric, remote, and sometimes abstract concept. As the difference between the Fifth Circuit’s opinion in Cranor and the Eleventh Circuit’s in Salcedo illustrates, the fundamental doctrine of TCPA standing (or how a plaintiff can get a ticket into federal court and stay there) differs depending on where the plaintiff brings the lawsuit. The Cranor decision reinforces the need to hire experienced attorneys who focus on the TCPA, who can help your business navigate the ever-changing landscape of TCPA law.

The Cranor opinion further solidifies the emerging national trend in most of the U.S. that a plaintiff can bring a lawsuit over a single unwanted text message without having to allege any meaningful damages or greater injury than mere nuisance. This broader view of TCPA standing underscores the need for telemarketing companies to implement and meticulously follow telemarketing industry best practices to maintain TCPA compliance. One non-compliant text message could give rise to a TCPA lawsuit or, worse yet, a TCPA class action involving hundreds of thousands of dollars in potential liability.

Hire experienced TCPA attorneys

The TCPA evolves with each new court ruling and regulatory decision. Telemarketers have enough to worry about without having to keep up with every change in the TCPA and how that might affect the way they do business. Klein Moynihan Turco can help. Our attorneys have years of experience helping businesses of all sizes successfully navigate. If you need help crafting or updating your telemarketing policies, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

Attorney Advertising

Photo by Clark Van Der Beken on Unsplash

Related Blog Posts:

Be Specific: TCPA Standing in the Eleventh Circuit

A Beginner’s Guide to TCPA Defense

Does Your Business Need a TCPA Opinion Letter?

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

(212) 246-0900

Are You Running a Promotion or Advertisement?

Get a FREE compliance review of your telemarketing or Internet marketing operation.