Federal courts are courts of limited jurisdiction, meaning that those courts have more stringent rules for plaintiffs to follow in order to get in the door and stay there. One critical element is the plaintiff's standing - specifically, whether the plaintiff suffered harm resulting from the defendant's conduct. The Eleventh Circuit (federal courts in Florida, Georgia, and Alabama) has a more limited view on standing under the Telephone Consumer Protection Act ("TCPA"). One recent decision from the Southern District of Florida captures that limited take on TCPA standing in a case captioned Hossfeld v. American Financial Security Life Insurance Company (SD Fla.).
In Hossfeld, the Court addressed whether the plaintiff had TCPA standing where he received calls that violated the TCPA, but never asked the calling party to place his number on the telemarketer's internal do-not-call list. The Court held that a plaintiff who does not ask to be put on an internal do-not-call list lacks standing to sue the calling party for failing to properly maintain its internal do-not-call list.
How do courts treat TCPA standing?
The Eleventh Circuit stands alone in its view on TCPA standing. In most parts of the country, alleging a violation of the TCPA along with almost any other harm (e.g.,nuisance or invasion of privacy) will satisfy standing requirements. The law in the Eleventh Circuit, however, embraces a considerably narrower interpretation.
In Salcedo v. Hanna, the Eleventh Circuit Court of Appeals held that receipt of a single unwanted text message, without proof of a concrete injury (other than nuisance or invasion of privacy), does not satisfy the constitutional requirements for standing. The Court reasoned that viewing a text message takes mere seconds, and a cellular phone, unlike a traditional fax machine, can still perform all its other functions when a text is delivered.
The Hossfeld decision reiterates this limited view of standing in the Eleventh Circuit. The decision makes complete sense: Hossfeld never asked to be put on the defendant's internal do-not-call list, so what difference does it make to him as to whether the company properly maintains this list or not? Like all plaintiffs in federal court, Hossfeld had to allege facts that show a "concrete and particularized" injury to prove that he had standing to sue. He may have received a telephone call that would otherwise violate the TCPA, but the Court rejected his case on TCPA standing grounds because he did not suffer the type of TCPA injury that alleged in his complaint.
How does standing impact your case?
For standing purposes, the first question to ask yourself as a defendant is whether you are in the Eleventh Circuit or somewhere else. If you find yourself in federal court in Florida, Georgia, or Alabama, then a standing attack may be more successful than if you are in California or New York, for example. If you are not in the Eleventh Circuit, you still have plenty of options to employ for purposes of defending against a TCPA lawsuit.
If you do find yourself in the Eleventh Circuit, the first question should be whether the plaintiff has alleged facts that meet the Circuit's standing requirements. You may be surprised to learn that complaints in the Eleventh Circuit are often lacking. Standing can be a very a nuanced concept and can mean different things in different parts of the country. As a result, many attorneys who do not regularly practice in the Eleventh Circuit or who are not well-versed in TCPA litigation fall short in either alleging facts that satisfy TCPA standing requirements or in failing to move to dismiss a complaint that does not meet the Eleventh Circuit's limited view on TCPA standing.
All TCPA litigation defense should start with the same question: did the plaintiff do everything required to get into federal court? If nothing else, reading this blog should make clear that the question is more complicated than it seems at first blush.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
