P&G Seeks Dismissal of TCPA Class Action for Lack of ‘Concrete Injury’

U.S. District Judge Rodolfo Ruiz for Southern Florida in Miami should follow “the legion of case law” in the 11th Circuit and dismiss all counts in plaintiff Christa Simmons’ class action alleging Procter & Gamble violated the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act. So asserted P&G in a memorandum of law Tuesday (docket 0:22-cv-61956) in support of its motion to dismiss.

Ruiz alternatively should stay the Simmons proceedings pending the outcome of the 11th Circuit appeal in Muccio v. Global Motivation (docket No. 23-10081), said P&G. The resolution of the appeal, in which appellant Stephen Muccio seeks to reverse the district court’s dismissal of his TCPA and FTSA claims for lack of standing, will be binding on Ruiz’s court, it said.

A stay, “at the very least,” may “simplify the issues” in Simmons’ case against P&G, the memo said. Attorney Jacob Phillips is representing Simmons and Muccio in their respective actions, said P&G, citing the similarities between the two cases. The 11th Circuit docketed Muccio’s appeal Jan. 9.

Simmons’ complaint “must be dismissed in its entirety” under the 11th Circuit’s “binding precedent” in Salcedo v. Hanna because she “did not suffer an injury in fact sufficient to confer Article III standing,” said P&G. Simmons alleges TCPA and FTSA violations arising out of her receipt of five P&G text messages advertising its Oral-B products.

But beyond Simmons’ “threadbare list” of generalized harms, her complaint “is wholly devoid of any allegation of a specific, concrete injury” she suffered because of the text messages, said P&G. “There is no allegation that she incurred any financial loss” or that the text messages “prevented her from using her device,” it said. She also fails to allege she suffered any degree of harm consistent with the “highly offensive” or “objectively intense interference” bar raised in Salcedo, it said. “The standing requirements set forth in Salcedo apply equally to both the TCPA and FTSA claims,” it said.

Simmons alleges P&G didn't give her or members of the potential class instructions how to opt out of future text messages, said the company. But she doesn't allege she ever responded “STOP” to any of the messages she allegedly received from P&G or that she asked to be placed on P&G’s internal do not call list, even though the fourth text message cited by screenshot in her complaint specifically stated, “Reply STOP to stop,” said the company.

The binding 11th Circuit precedent says the test to determine if a TCPA or FTSA injury is concrete rests with the “qualitative” nature of the alleged infraction, not the number of allegedly improper text messages or calls received, said P&G. Under that “framework,” the 11th Circuit said in Salcedo “the receipt of a single unsolicited text message does not qualify as an injury in fact” to confer Article III standing, it said. That Simmons allegedly received five improper text messages to Salcedo's one shouldn't matter under the 11th Circuit's binding precedent, it said.

The court rejected the plaintiff’s allegations in Salcedo that he was harmed by the single text message he received because it caused him to waste time answering or otherwise addressing the message and resulted in an invasion of his privacy and right to enjoy the full utility of his phone, said P&G. It found those inconveniences were “qualitatively different” from the types of harms sufficient to confer Article III standing, it said. Though allegations of wasted time “may state a concrete harm for standing purposes,” the court emphasized that concrete harm from wasted time requires, at the very least, more than a few seconds, it said.