So its Opposite Day here in TCPAWorld.  I’ll prove it.

Imagine a case where a Plaintiff—the one bringing a lawsuit—admits that a Defendant—the person being sued—didn’t actually harm them, but the Defendant won’t have it and argues that their conduct really did cause an injury. Well that is exactly what happened in a TCPA suit involving NHL hockey team the Florida Panthers, and it is just as bizarre as it sounds. See Mittenthal v. Fla. Panthers Hockey Club, Ltd., CASE NO. 20-60734-CIV-ALTMAN/Hunt, 2020 U.S. Dist. LEXIS 123127 (S.D. Fl. July 14, 2020).

There’s a back story here, as you’d expect. Stated simply: the law of the Eleventh Circuit is now extremely favorable for TCPA defendants. And while state courts should—they do not always—follow binding Circuit Court precedent applicable to the venue where a suit is brought. So if you’re a Plaintiff with a great big TCPA class action against an NHL team in Florida you want to keep that suit pending in state court and not let the case get elevated—as most TCPA class actions do—to federal court. If you’re a Defendant in a TCPA suit in Florida state court, on the other hand, you want to make sure the prominent federal court is reviewing your case to make sure positive federal case law is faithfully applied.

So that all makes sense, but why the bizarre argument about whether Plaintiff was harmed?

Federal courts are courts of limited jurisdiction—they can only hear claims about actual controversies arising out of actual injuries. Any claims too conjectural or trivial to result in real-world “concrete” harm are left for the state courts to solve. With the TCPA harm is often in the eye of the beholder. Some courts conclude—rather roughly—that merely because a consumer receives an unwanted call they were necessarily “harmed” in some real work sort of way. That doesn’t really pass the small test, of course, since the TCPA does not prevent unwanted calls to begin with—just uninvited calls—and not every unwanted call is going to cause you to fall off a ladder, wake up from a nap, or rise from a family dinner. Some of them just go unnoticed, or scarcely noticed like so many other nuisances in our modern world.

The Eleventh Circuit Court of Appeals has been particularly clear that receiving a single unwanted text does not cause actionable harm in a vacuum. District courts have gone further and concluded that two, three, even five messages may not cause any real world concrete harm. So suits involving such low numbers of texts simply cannot be filed—at least not in federal court.

That leaves the issue of whether these claims can proceed in state court. I think there is a very good argument that they cannot—but I’m not sharing that secret with you publicly, clients only— but the current assumption appears to be that claims rejected by the federal court can cruise along in state court.

All of which brings us back to MIttenthal. In that case the Plaintiff had dismissed an earlier federal court suit and re-filed in state court omitting any reference to the text messages at issue causing any harm. The Florida Panthers, however, wanted the federal court in Florida to preside over the case because, as already explained, the case would be swiftly dismissed on the merits for lack of a substantive claim. To get into federal court, however, the hockey team had to admit—indeed, it affirmatively argued—that its unwanted messages did, in fact, injure people.

The Plaintiff—again desiring to keep the case in Florida state court—took the opposite tact, arguing that he had filed a class action in court over conduct that hadn’t really harmed him to begin with. Classy.

Ultimately the Court sided with the Plaintiff (or is it the Defense?) and concluded that the texts did not cause any actual harm and so the case had to be remanded to state court. Along the way the Court pointed out the bizarreness of the parties’ positions:

This is the odd case in which the Plaintiffs insist that the Defendants’ wrongful actions did not harm them—even as the Defendants maintain that they have.

See… Opposite Day.

One last thing, practitioners should take note of footnote 4. It reads: “It is worth noting, too, that nothing in this Order—or in Salcedo—prevents the state court from exercising jurisdiction over this case. State legislatures, after all, are always free to adopt lower standing requirements than those imposed by Article III on federal courts.”

I’m not sure that’s quite right—as I mentioned earlier there’s a very good argument that these cases cannot proceed in state court either—but this is language everyone should be aware of.