Final yr, in Salcedo v Hanna, the US Court docket of Appeals for the 11th Circuit dominated that receipt of a single unsolicited textual content message didn’t set up a “concrete harm the truth is” – a basic requirement for standing to convey a Phone Client Safety Act (TCPA) class motion. However what about two such texts in a 4 day interval?
That was the query in Manuel Perez v. Golden Belief Insurance coverage, Inc., 2020 U.S. Dist. LEXIS 120819, Case No. 19-24157-Civ-COOKE/GOODMAN, United States District Court docket for the Southern District of Florida, July 6, 2020. Three weeks after receiving the second textual content, Mr. Perez introduced a TCPA class motion arguing that the telemarketing texts have been delivered to his cellphone utilizing an automated phone dialing system (ATDS). Golden Belief moved to dismiss, arguing that the plaintiff had “not correctly alleged that it used an ATDS.”
Wait a minute stated U.S. Justice of the Peace Choose Jonathan Goodman. The Court docket first needed to decide whether or not it had material jurisdiction, and with out the plaintiff correctly alleging standing to sue, there was no such jurisdiction.
Acknowledging that Salcedo was based mostly on a single textual content message, the Court docket dominated that the “rationale for locating an absence of harm from one [such] message applies equally [to]… two textual content messages” acquired over 4 days. Choose Goodman famous qualitative variations between the Perez allegations of intangible accidents (e.g., time wasted, aggravation, intrusion, interrupted enterprise calls) and instances the place the Eleventh Circuit had discovered standing. For instance, “‘a cellphone consumer can proceed to us the entire machine’s capabilities, together with receiving different messages, whereas it’s receiving a textual content message.’”
Backside line: the 2 textual content messages, which contained “fifty phrases for the Plaintiff to learn,” didn’t meet the “concrete harm the truth is” requirement. Moderately, as in Salcedo, the alleged harm was “‘remoted, momentary and ephemeral.’” Not sufficient.
Case dismissed (with out prejudice) for lack of material jurisdiction.
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