11th Circuit Opening Brief Argues for Article III Standing Under FTSA

The 2019 11th U.S. Circuit Appeals Court decision in Salcedo v. Hanna that doomed plaintiff Stephen Muccio’s district court claims that Global Motivation and owner Jordan Belfort violated the Telephone Consumer Protection and Florida Telephone Solicitation acts are “not binding” on the 11th Circuit panel hearing Muccio’s appeal, said his opening brief Tuesday (docket 23-10081). Muccio is appealing the lower court’s dismissal of his FTSA claims, not his TCPA defeat.

U.S. District Judge Aileen Cannon for Southern Florida cited Salcedo in dismissing Muccio’s claims for lack of Article III standing because the defendants’ alleged FTSA wrongdoing didn’t cause Muccio “concrete” harm, such as loss of income or diminished use of his smartphone. But the district court erred because the “intangible injury” Muccio sustained “is closely related to the common law torts of intrusion upon seclusion and public nuisance,” said his brief.

Muccio alleges the defendants placed five “robotext” messages to him without his consent via an automated dialer, “notwithstanding that the FTSA explicitly prohibits sending unwanted text messages,” said his brief. Salcedo and its requirement that a plaintiff must show concrete harm from an FTSA violation forced the district court’s dismissal of Muccio’s claims, notwithstanding the “differences” between his case and Salcedo, it said.

The "level of repetitive, hounding, insistent annoyance" in the five robotexts Muccio received "may not have been quite enough to state a common-law cause of action -- maybe 15 or 20 more would be needed,” said the brief. “But it is the same type of harm that could (eventually) be rectified by bringing a claim for intrusion upon seclusion,” it said. It’s also a harm the Florida legislature “deemed worthy of elevation to the status of legally cognizable,” it said.

The 11th Circuit previously said in Salcedo a single text message sent in alleged violation of the TCPA, “a statute where Congress was completely silent on text messaging,” doesn’t by itself “confer Article III standing,” said the brief. “But if analogizing to common law teaches us anything, it teaches us that one thing, at least, is needed: repetition,” it said.

A single unwanted call or text “may indeed lack this fundamental character,” as the 11th Circuit held in Salcedo, said the brief. “By contrast, multiple unwanted texts -- two or five or eight or 100 -- shares it, albeit perhaps not to the same degree,” it said. “Presumably for this reason, every appellate court to address multiple text messages (or phone calls) have agreed Article III standing is established.”

Unlike when Congress enacted the TCPA, the Florida legislature, when drafting the FTSA, “explicitly proscribed unwanted robotexts,” said the brief. “As such, the legislative judgment factor has completely flipped compared to Salcedo,” it said. “It now weighs in favor of, not against, finding that Article III is satisfied.”

The five “repetitive unwanted” text messages Muccio received from the defendants “is analogous to receiving hounding phone calls,” said the brief. That confirms the Florida legislature “did not just make up an intangible injury out of thin air,” it said. The 11th Circuit Court therefore “can fulfill its judicial role of interpreting the law, saying what it is, and adjudicating alleged invasions of private rights,” it said.

It must be “emphasized at the outset” that Salcedo, which said a single unwanted text message placed in violation of the TCPA is insufficient, by itself, to satisfy Article III, “is not binding here,” said the brief. As the 11th Circuit said in its 2003 decision in Anders v. Hometown Mortgage Services, “the holding of a case is confined to the facts and claims presented,” it said. The facts in Salcedo “entailed receipt of a single unwanted text” in violation of the TCPA, it said. Salcedo thus is binding on “constituent district courts and subsequent panels” of the 11th Circuit “only to the extent the same facts are presented,” it said.

Muccio’s complaint “presents different facts and claims” than Salcedo, said the brief. Muccio received at least five unwanted messages, placed in violation of a different statutory scheme, the FTSA, “which, unlike the TCPA, explicitly prohibits telemarketing robotexting,” it said. The 11th Circuit thus “is free to consider the question of whether Article III standing is established where a plaintiff receives five text messages placed in violation of the FTSA,” it said.