On July 25, the U.S. Court of Appeals for the Eleventh Circuit issued an en banc decision in Drazen v. Pinto, No. 21-10199, 2023 WL 4699939 (11th Cir. July 25, 2023), finding that a "plaintiff who receives an unwanted, illegal text message suffers a concrete injury" for purposes of Article III standing in Telephone Consumer Protection Act (TCPA) litigation.
In doing so, the Eleventh Circuit disagreed with an earlier panel decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which found that a single unwanted text message is a "brief, inconsequential annoyance [that is] categorically distinct from those kinds of real but intangible harms" and therefore insufficient to meet Article III's injury-in-fact requirement.
The Drazen decision should be seen as the controlling law in the Eleventh Circuit. As such, it significantly increases potential exposure for companies engaging in telephone solicitation in Florida under the TCPA and may likewise increase exposure under the TCPA's state counterpart, the Florida Telephone Solicitation Act.
Companies engaged in telephone solicitation should continue to ensure that their telemarketing activities strictly comply with both statutes, as even a single phone call or text has now been deemed a sufficient injury for a plaintiff to have standing under the TCPA and could expose the company to consumer class actions.
Day Pitney Litigation Partners Gregory Bruno and Alfred W.J. Marks authored "Don't Believe Everything You Read Online: Recent Sanctions Decision Offers Cautionary Tale of Generative AI Risks" for the New York Law Journal's Special Litigation Section.