Fifth Circuit Court Of Appeals Rules That Single Text Message Can Satisfy Article III Standing In TCPA Action

• Published date: 10 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, Mobile & Cable Communications, Privacy Protection, Class Actions, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Kelley Drye & Warren LLP
• Author: Lauri A. Mazzuchetti, Becca Wahlquist, Whitney M. Smith, Paul A. Rosenthal and Luis Pena-Navarro

The U.S. Court of Appeals for the Fifth Circuit has ruled that a single marketing text message alleged to have violated the Telephone Consumer Protection Act of 1991 ("TCPA") was sufficient for a plaintiff to meet the Article III injury requirement for standing.

The court, in Cranor v. 5 Star Nutrition, ¹ looked to Congressional intent behind the statute and "the history of analogous common law actions," reversing the Texas district court that had dismissed the one-text complaint for lack of standing.

The Fifth Circuit's decision stands in stark contrast with two recent decisions by the U.S. Court of Appeals for the Eleventh Circuit that found no standing for claims based on a single communication: Salcedo v. Hanna² and Grigorian v. FCA US LLC. ³

The Fifth Circuit thus has now weighed in on the growing circuit split on TCPA standing now brewing between various federal circuits. Years before the Eleventh Circuit's Salcedo ruling, the U.S. Court of Appeals for the Ninth Circuit⁴ had opined that TCPA allegations stemming from a single marketing text could support Article III injury. Just before the Ninth Circuit's decision in Cranor, the U.S. Court of Appeals for the Third Circuit held that a single prerecorded call with no asserted injury-in-fact cannot support such standing to pursue TCPA claims.⁵

Given the deepening division on TCPA standing, and the direct contrast between two federal circuit courts' analysis regarding text messaging in particular, this article outlines the differing approaches of the Fifth and Eleventh Circuits to the text messaging injury requirements. Businesses must be aware of this deepening rift.

The Fifth Circuit's Decision in Cranor

In June 2018, plaintiff provided his cell phone number to a nutrition store following a purchase. The store sent plaintiff marketing text messages concerning additional products, and a dispute involving "unsolicited advertising text messages" followed, which the parties settled before reaching litigation. After entering into a pre-suit settlement agreement in November 2018, the store then sent another marketing text message, to which plaintiff again responded with the phrase "STOP" in order to opt out of future messages. The store sent no further text messages, but plaintiff filed a putative class action alleging a violation of the TCPA, arguing that the one text message sent after the parties' settlement agreement "trespassed upon and interfered with [plaintiff's] rights and interests in his cellular telephone and cellular telephone line, and intruded upon [his] seclusion."

The federal district court found that the plaintiff lacked standing and dismissed.⁶ The lower court noted that "text messages are sufficient forms of injury-in-fact in actions arising out of the [TCPA]," but the single text message at issue did not "constitute [an]...