One Spam Text Does Not Confer Standing in the Eleventh CircuitOne unwanted text message does not confer standing in federal court in the Eleventh Circuit — so holds the court in Salcedo v. Hanna. The case confirms that one text message is qualitatively, and jurisprudentially, different from the kind of intrusions that give rise to an Article III injury-in-fact.

The plaintiff in Salcedo claimed that he received a single unsolicited text message for a discount on legal services from his former lawyer. He brought a putative TCPA class action against the lawyer and his firm, and the defendants moved to dismiss for lack of standing. Even though the district court denied the motion, it certified its order for interlocutory appeal under 28 U.S.C. § 1292(b), and the Eleventh Circuit — which, in our experience, takes very, very few discretionary interlocutory appeals — granted the defendants’ petition for review.

The Eleventh Circuit reversed, finding that receiving a text message “is not the kind of harm that constitutes an injury in fact.” It analogized “[t]he chirp, buzz, or blink of a cell phone receiving a text message” to “walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not the basis for invoking the jurisdiction of the federal courts.” The court also distinguished junk fax cases, noting that a junk fax ties up a fax machine for “a minute or so” and imposes a tangible cost for printing the fax. Texts, on the other hand, cost nothing: “receiving a text message uses no paper, ink, or toner” and doesn’t preclude receiving other messages, texts or phone calls at the same time. While some recipients may have to pay a fee per text message received, the plaintiff did not allege that he paid any such fee. As a result, “receiving a fax message is qualitatively different from receiving a text message.”

The court also looked to Congress’s intent to support its conclusion: “We first note what Congress has said in the TCPA’s provisions about harms from telemarketing via text message generally: nothing.” It concluded that “congressional silence is a poor basis for extending federal jurisdiction to new types of harm” and distinguished text messages from unwanted telemarketing phone calls. For the Eleventh Circuit, a received text that may cause a brief alert to sound on your phone is not the same as a clanging telephone that disturbs your domestic tranquility.

The over-arching distinction that the court drew is that text messages are qualitatively different from unwanted faxes or phone calls. The word “qualitative” appears five times, and the last heading before the opinion’s conclusion is “quality, not quantity.” This quality/quantity distinction defies simple explanation. While the court memorably stated that “Article III standing is not a ‘You must be this tall to ride’ measuring stick,” much of the analysis focuses on how receiving a single text message imposes less harm than other kinds of occurrences that the Eleventh Circuit has found to confer standing.

We’d caution against bestowing landmark status on Salcedo, at least as to subject matter jurisdiction. The result is obviously a good one for defendants facing TCPA liability. But that result draws heavily on the pleaded facts of the case, and plaintiffs’ lawyers will certainly try pleading around it. It may be that sharper allegations of harm will at least let a plaintiff survive a Rule 12(b)(1) challenge to a complaint, and we’ll have to wait for the next case to see.

Salcedo is more likely to help companies facing TCPA liability at the class certification stage. The more specific allegations of harm required to create standing can only make class certification more difficult, as the unique harm facing the class representative may not be shared by the putative class as a whole — something we have previously explored for post-Spokeo standing challenges generally.

Two more things to watch: the Eleventh Circuit highlighted its disagreement with the Ninth Circuit’s decision in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017). Under Van Patten, in the Ninth Circuit, a single text message can confer Article III standing, but the Eleventh Circuit called that decision “unpersuasive” and characterized the Ninth Circuit’s reasoning as relying on “broad overgeneralizations.” This budding circuit split invites the Supreme Court to grant certiorari at some point, though likely not until other circuits join the competing camps.

In the meantime, we would expect plaintiffs to select forums in the Ninth Circuit instead of the Eleventh Circuit. The Southern District of Florida has long been a hotbed for TCPA class actions, but Salcedo could change the plaintiffs’ bar’s calculus, at least for TCPA claims based on unsolicited texts. Moreover, the Eleventh Circuit’s willingness to grant interlocutory review of this case suggests that the court was looking for an opportunity to address the jurisdictional issues arising from single-text TCPA cases. Such cases present some of the starkest disparities between the lack of harm to the plaintiff and the potential for ruinous consequences for defendants.

A Quick Study in Doxing and Personal Jurisdiction: Vangheluwe v. GotNewsIn the digital age, the internet not infrequently stretches the bounds of traditional jurisprudence and raises tricky new questions. An example from earlier this year is Vangheluwe v. GotNews, LLC, where a federal court in Michigan grappled with this question: How significant to personal jurisdiction is “doxing” a resident of the forum state? The Eastern District of Michigan’s shorthand answer is: It all depends on the dox.

What is Doxing?

Doxing (sometimes spelled “doxxing”) is the internet-spawned practice of disclosing or publicizing on the internet an individual’s private or identifying information, such as his or her identity, or personal or work address. The goal typically is to harass or retaliate against the “outed” person by exposing private or identifying information to an online audience.

Underlying Facts

Vangheluwe arose out of events at the now infamous “Unite the Right” rally in Charlottesville, Virginia, in August 2017. During or shortly after that event, a Dodge Challenger driven by James Alex Fields, Jr. sped into a crowd of counter-protestors, killing one and injuring numerous others. Promptly thereafter, users of the online forum 4Chan located and posted public records showing that the vehicle was at some point owned by one Jerome Vangheluwe, a resident of Michigan. A reporter for the online outlet GotNews learned this information, located and reviewed social media pages for Jerome Vangheluwe’s son Joel, and proceeded to post an article titled “BREAKING: #Charlottesville Car Terrorist is Anti-Trump, Open Borders Druggie.”

Individuals also rushed to implicate (wrongly) the Vangheluwes on Twitter and elsewhere. Lita Coulthart-Villanueva tweeted “Killer confirmed. Jerome Vangheluwe,” followed by his home address in Michigan. Richard Weikart tweeted that “Joel Vangheluwe from Romeo, Michigan . . . was the attacker.” Paul Nehlen tweeted a link to the GotNews article (including its “car terrorist” headline).

The Vangheluwes – who did not own the Challenger and had nothing to do with the rally – were not amused, particularly after receiving “countless anonymous threats” and being warned by Michigan State Police to leave their home for their own safety. They brought defamation and related claims against two news entities and 20 individuals (including the three mentioned above) in the U.S. District Court for the Eastern District of Michigan. Coulthart-Villanueva (a California resident), Weikhart (from Indiana) and Nehlen (from Wisconsin) all filed motions to dismiss, arguing that the court lacked personal jurisdiction over them.

The Ruling

Construing the Supreme Court’s decision in Calder v. Jones (a defamation case involving a magazine publication), as well as more recent circuit online defamation case law, the court concluded that merely posting a defamatory statement about the plaintiff online is insufficient to hale the poster into the plaintiff’s forum state — rather, “the poster’s conduct must have involved the plaintiff’s state in some additional way.”

Applying this test, the court determined that one of the tweeters could properly be subject to personal jurisdiction in Michigan. Coulthart-Villanueva’s tweet included the Vangheluwes’ physical address, making it “reasonable to infer that [her] tweet was intended to cause some action in Michigan or catch the eye of those most able to make contact with the Vangheluwes, i.e., Michiganders.” The fact that Coulthart-Villanueva’s tweet had no “likes,” was not retweeted, was deleted within two hours, and had a total of four comments (two of which pointed out that she had misidentified the driver) gave the court “pause,” but not enough to grant the motion to dismiss.

By contrast, the court held that the other two individuals were not properly subject to suit in Michigan. Nehlen, who had linked the GotNews article in his tweet, did not provide either of the Vangheluwe’s “current whereabouts with any specificity” (the article did identify Jerome as being from Michigan and Joel as having attended high school in Romeo, Michigan). Analyzing the article’s content, the court found that Nehlen’s tweet lacked “a Michigan focus” that would subject him to suit in that state. The court reached the same conclusion about Weikart’s tweet, which did identify Joel as being from Romeo, Michigan, finding that “nothing about the tweet suggests he was targeting a Michigan audience.”

Our Take

Personal jurisdiction in internet defamation cases is an evolving area, particularly in view of the more restrictive approach to personal jurisdiction taken by the Supreme Court in recent decisions such as Walden v. Fiore. Vangheluwe (as well as the Seventh Circuit’s earlier decision in Tamburo v. Dworkin) shows that the old “effects test” of Calder v. Jones is far from dead, at least not in the realm of online defamation. The Vangheluwe court’s lengthy analysis of the doxing tweets also shows that personal jurisdiction issues in cases such as these will involve a close parsing of the poster/tweeter’s words, as well as the intended audience of the communication. For now, the bottom line appears to be this: The closer a tweet or post comes to encouraging behavior or action within the forum state, the more likely personal jurisdiction will be found.

Ask and You Shall Be Deemed to Have Consented to Receive: The Eleventh Circuit Affirms TCPA Fax Summary JudgmentConsent is the most powerful weapon companies have against TCPA liability, and a recent Eleventh Circuit opinion illustrates how. In Gorss Motels, Inc. v. Safemark Systems, L.P., the Eleventh Circuit affirmed summary judgment where the plaintiffs consented to receive solicitations in their franchise agreements.

The background: Gorss and another company, E&G, operate hotels as franchisees of the Wyndham Hotel Group. In the franchise agreement, they agreed that Wyndham and its affiliates could offer assistance to the franchisees in purchasing items for their franchised hotels. In that same agreement, the franchisees included their fax numbers. Safemark, a company that provides safes to Wyndham franchisees, sent two faxes to Gorss, E&G, and more than 7,000 other recipients.  Neither fax contained instructions about how to opt out of receiving future faxes. Gorss and E&G filed suit alleging TCPA violations and sought to certify two classes — one for each fax.

The district court first denied class certification, finding that individual issues of permission would predominate over common questions. That issue went up to the Eleventh Circuit on permissive appeal under Rule 23(f). But proceedings in the district court continued during that appeal, and the district court ultimately granted summary judgment for Safemark, finding that it had permission to send the faxes and that the solicited faxes did not need to include an opt-out notice.

The Eleventh Circuit panel unanimously affirmed. It concluded that the franchise agreement unambiguously gave Safemark permission to send faxes about items for purchase to be used in the plaintiffs’ hotels. In doing so, it disregarded the subjective understanding of one of the plaintiff’s agents, who testified that the faxes were not solicited. Instead of relying on a person’s subjective understanding, the Eleventh Circuit looked at the objective scope of the franchise agreement.

The court also addressed the effect of the repeal of the so-called “solicited fax rule.” The upshot is that the rule is a dead letter in the Eleventh Circuit. The rule formerly required that even solicited faxes include instructions for opting out (47 C.F.R. § 64.1200(a)(4)(iv)). But the Federal Communications Commission eliminated the rule by an order issued in November 2018, and that order was published in the Federal Register in March 2019. The Eleventh Circuit held that the elimination of the solicited-fax rule applies retroactively. It noted that the FCC had revoked the rule because courts of appeal had found it unlawful, and it found no reason why an unlawful rule should be enforced.

There are two TCPA takeaways:

  • Gorss is another example of how useful effective consent can be as a defense in TCPA cases. In particular, it illustrates the value of broad consent (i.e., communications from a party or any of its affiliates) contained in the relationship-defining contract (i.e., the franchise agreement). Prudent companies may consider auditing their agreements to ensure that consent to receive communications is broadly drawn.
  • This case also illustrates the value of consent at the class-certification stage, independent of the merits. While the Eleventh Circuit did not reach the certification issue, the district court denied class certification because of individualized issues relating to consent. A consent regime can force plaintiffs into taking individualized approaches to avoid the effect of written consent — such as relying on a class representative’s or putative class member’s subjective understanding of what the consent covered. These attempts at avoiding unambiguous consent can make class certification impossible.

Gorss also presents two interesting points of appellate practice:

  • In a quirk of appellate opinion writing, Judge William Pryor also authored a concurrence to his unanimous panel opinion, and both of the other judges on the panel joined it, too. The concurrence addresses an issue raised in the appeal but not necessary to the result —namely, the meaning of the Hobbs Act’s grant of “exclusive jurisdiction” to the circuit courts to adjudicate the validity of certain agency orders (28 U.S.C. § 2342). The concurrence takes the position that the Hobbs Act narrowly forbids parties from directly challenging the validity of agency orders, but does not require that district courts treat such orders as binding precedent. The concurrence also invites a challenge to existing Eleventh Circuit cases that take a broader view of the Hobbs Act and outlines problems with that broad view. The 14-page concurrence addresses issues too detailed for this post, but it is gratifying to see judges writing opinions that clearly state “this part is law” and “this part is dicta.”
  • For practitioners in the Eleventh Circuit: The panel opinion and concurrence cite “Reading Law: The Interpretation of Legal Texts” by the late Justice Scalia and Bryan Garner seven times. Any book so prominently cited belongs on your shelf.