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Wednesday, August 28, 2019

Merits, not standing

I have no idea whether the Eleventh Circuit is correct that a single unsolicited text violates the Telephone Consumer Protection Act. But it highlights the absurdity of treating standing as something other than substantive merits. The heart of the analysis is the scope of the TCPA and congressional intent--what should be questions of whether a plaintiff has stated a cause of action under applicable substantive law.

Posted by Howard Wasserman on August 28, 2019 at 10:17 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


It is absurd that a single unwanted text message create an injury for the plaintiff and forms the basis for class action. Where is the waste of time, energy, and money in opening a text message? The plaintiff lacks standing. It is different from receiving a phone call inside one's home and for that matter a fax.

Bashar H. Malkawi

Posted by: Bashar H. Malkawi | Sep 1, 2019 6:42:50 AM

Isn't it even worse than you say? As I understand the opinion, it says that a single text message violates the TCPA, but it isn't the kind of violation Congress was *really* worried about, as far as we can tell from its legislative findings, so no jurisdiction! That is, federal courts only have jurisdiction over the TCPA violations Congress thinks are bad enough to talk about in purpose sections, not the ones it merely cares about enough to only make illegal. If I had known before I embarked on law school that by the time I was a lawyer this psychedelically daffy theory of standing would be the law, I might have done something else with my life.

Posted by: Asher | Aug 31, 2019 12:06:57 PM

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