Eleventh Circuit holds unwanted text message is enough for a lawsuit

In this episode of Consumer Finance Compass, Jason Tompkins, partner in Balch & Bingham’s Consumer Finance Compliance & Defense Practice, explores the Eleventh Circuit’s new decision in Muccio v. Global Motivation, Inc., which holds an unwanted text message is enough for a lawsuit. Jason explains what the decision means for businesses and future challenges.  

Consumer Finance Compass:

Hosted by Balch & Bingham’s Jason Tompkins and Jonathan Hoffmann, Consumer Finance Compass is a video series navigating the latest issues in the complex regulatory sphere that is consumer finance. Jason and Jonathan are partners in the firm’s Birmingham office and members of the Consumer Finance Compliance & Defense Practice.

Video Transcript:

Welcome to Balch’s Consumer Finance Compass, where we'll navigate the complex regulatory sphere that is consumer finance. I'm Jason Tompkins, chair of the Issues and Appeals Practice and member of the Consumer Finance Compliance and Defense Practice here at Balch and Bingham. 

Today we'll explore Muccio v. Global Motivation Inc., a recent decision from the Eleventh Circuit concerning standing. What is standing? When I think of standing, I remember the movie “Air Force One.” President James Marshall, played by Harrison Ford, is on his plane and it's been overtaken by terrorists and he calls the White House to try to reach the Vice President and he says he's the President. But, the operator does not believe it. And he says, just put me through. And she finally says, okay, you want to make a federal case out of it? That's what standing is. It's what makes something a federal case. One component of standing that is frequently litigated is whether there's an actual concrete injury. 

The Eleventh Circuit has been very active for the past few years on this issue with cases like Trichell, Muransky and Hunstein, which have all received great amount of press, and in which the Eleventh Circuit held repeatedly that technical violations of certain consumer protection statutes were not enough to confer standing. In Muccio, the Eleventh Circuit went the other way and held that five unwanted text messages was enough to constitute a concrete injury. The court held that Congress cannot just create an injury out of whole cloth, but they can decide what degree of injury is sufficient for standing so long as it bears some resemblance to a traditional injury that the courts could redress. In doing so, they relied upon Drazen v. Godaddy.com, a decision from earlier this summer in which they held that a single text message was enough to constitute an injury that the courts could redress and they held so because a traditional harm is intrusion upon seclusion and this text message, an unwanted text message, is an intrusion upon someone's seclusion. 

So the takeaway from this decision is that when you're faced with a complaint alleging violation of a consumer statute and you're developing your defense strategy, you must look at exactly what injury is being alleged and decide if that is something that traditionally courts would've redressed outside of the consumer finance world. The kind of injury is all that matters. Is it something that bears a resemblance to an injury that you would traditionally consider to be harm? The degree of injury no longer matters. It doesn't matter if it's one letter, one phone call or 50. If it's enough to cause harm under traditional theory, then it's enough for these consumer statutes. 

Thank you for joining us for Consumer Finance Compass. I'm Jason Tompkins, and we'll see you next time there's an important breaking decision from one of the courts.