FEDERAL COURT FINDS RECEIPT OF ONE UNWANTED TEXT MESSAGE CONSTITUTED CONCRETE INJURY FOR PURPOSES OF ARTICLE III STANDING
Article III standing has been a frequently debated topic for Florida courts over the last several years and last month was no exception. Florida’s Eleventh Circuit recently considered the issue again en banc (meaning, all the judges of the Eleventh Circuit considered the matter) in Drazen where it concluded that a party who received one unwanted text message from GoDaddy.com suffered a “concrete injury” for purposes of Article III standing. Drazen v. GoDaddy.com, LLC, 2023 WL 4699939 (11th Cir. July 24, 2023).
We’ve discussed Article III standing in detail in several prior articles[i]. To recap, a person cannot bring a matter in federal court unless they can prove: (1) They suffered a “concrete” injury in fact, that is, an injury that is particularized and “actual or imminent”; (2) The defendant likely caused the injury; and (3) A favorable court decision would likely redress the injury.”[ii] In Drazen, the 11th Circuit focused on the first of these three elements, injury in fact.
The class action lawsuit in Drazen stemmed from GoDaddy sending Drazen one unwanted automated text message which Drazen claimed was part of an unlawful[iii] telemarketing campaign and violated the Telephone Consumer Protection Act. Drazen filed a lawsuit and sought class certification defining the class of plaintiffs as those who either received a text message or phone call, or combination of both, from GoDaddy between November 2014 and December 2016.
While the matter was pending the parties reached a settlement agreement which required the district court’s approval.[iv] During the approval process, the district court questioned its jurisdiction over those plaintiffs in the class who only received one text message as opposed to a phone call or combination of text(s) and call(s). The district court concluded it did not have jurisdiction over those plaintiffs who only received one text message based on the Eleventh Circuit’s holding in Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019).
Drazen appealed that portion of the decision to the Eleventh Circuit which conducted a detailed analysis of the concrete injury requirement of Article III standing.[v] The Court noted concrete injuries sufficient to support Article III standing usually took the form of financial or physical harm; however, the Court explained the concrete injury requirement could also be satisfied by a plaintiff who suffered an intangible harm if the intangible harm shared a “close relationship with a harm that has traditionally provided a basis for a lawsuit in English or American courts.”[vi]
The Eleventh Circuit concluded that receipt of the single unwanted text message was “an intrusion into the peace and quiet in a realm that is private and personal” similar to the traditional tort of intrusion upon seclusion.[vii] The Court explained that the crucial element for evaluating the respective harms was whether they shared a close relationship “in kind, not degree.”[viii] The Court concluded “an unwanted text message is…offensive to some degree to a reasonable person” and that was sufficient to satisfy the concrete injury element of Article III standing.[ix]
The Court rejected GoDaddy’s argument that receipt of a single unwanted text was not sufficient because it was not “highly offensive to a reasonable person” – the harm requirement for invasion upon seclusion.[x] The Court reiterated: The harm need not be an exact duplicate or carbon copy of the harm required by the tort, only similar in kind.[xi] Notably, during oral argument GoDaddy admitted that receiving one text a day for thirty days would satisfy the “offensiveness element.”[xii]
The Court relied heavily on that concession explaining: “Thirty unwanted text messages in thirty days are enough [to satisfy the offensiveness element] but one is not[,] is an argument of degree, not kind. If thirty are enough, then are twenty-nine? Are twenty-eight? How about two?” The Court concluded, “Drawing the line necessarily requires us to make a choice of degree” which it refused to do. The Court found Drazen satisfied the concrete injury element for Article III standing and remanded the matter to the district court for further consideration of other unrelated issues.
[i] Include links to the final versions of the following prior eBlast articles: 6/2023 Mack, 5/2023 Eldridge, 9/2022 Hunstein, 1/20 Buchholz
[ii] Drazen, at 1. All future citations or quotations are to this citation until indicated otherwise.
[iii] Ostensibly, it was not contested that the unwanted text message violated the Telephone Consumer Protection Act. Drazen, at 1.
[iv] Drazen, at 2. All future citations or quotations are to this citation until indicated otherwise.
[v] Drazen, at 1-2.
[vi] Drazen, at 1. All future citations or quotations are to this citation until indicated otherwise.
[vii] Drazen, at 1, 4.
[viii] Drazen, at 5.
[ix] Drazen, at 6.
[x] Drazen, at 5 (emphasis added).
[xi] Drazen, at 5.
[xii] Drazen, at 6. All future citations or quotations are to this citation until indicated otherwise.
