In Cranor v. 5 Star Nutrition, L.L.C., No. 19-51173, 2021 U.S. App. LEXIS 15795 (5th Cir. May 26, 2021), the Court of Appeals for the Fifth Circuit found Art. III standing arising from the sending of a single text message.
On similar facts, the Eleventh Circuit concluded there is no common law analogue to the harm of receiving an unwanted robotexted advertisement. In its view, a single text message is “the kind of fleeting infraction upon personal property that tort law has resisted addressing.” Salcedo, 936 F.3d at 1172. Liability for trespass to chattels, for example, would arise “only when ‘the possessor is deprived of the use of the chattel for a substantial time’ or when the trespass harms ‘the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel.'” Ibid. (quoting Restatement (Second) of Torts § 218(c) & cmt. e (Am. L. Inst. 1965)). Putting aside that Salcedo never addressed public nuisance, that view is mistaken for at least two reasons. First, Salcedo’s view of trespass to chattels is substantially narrower than the scope of that action at common law. As Justice Alito recently explained, “[a]t common law, a suit for trespass to chattels could be maintained if there was a violation of ‘the dignitary interest in the inviolability of chattels.'” United States v. Jones, 565 U.S. 400, 419 n.2, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Alito, J., concurring in the judgment) (quoting Prosser & Keeton, supra, at 87). In practice, that meant “trespass to chattels [was] actionable per se without any proof of actual damage.” John W. Salmond, Law Of Torts: A Treatise On The English Law Of Liability For Civil Injuries 331 (1907). HN15 An action might lie even where, as here, the alleged tortfeasor never physically touched the claimant’s property. See ibid. (explaining that “[i]t is presumably a trespass willfully to frighten a horse so that it runs away”); Webb v. Portland Mfg. Co., 29 F. Cas. 506, 507, F. Cas. No. 17322 (C.C.D. Me. 1838) (Story, J.) (“[E]very injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages.”). By contrast, “today there must be ‘some actual damage to the chattel before the action can be maintained.'” Jones, 565 U.S. at 419 n.2 (Alito, J., concurring in the judgment) (quoting Prosser & Keeton, supra, at 87). Salcedo thus mistakes the twentieth-century Restatement for the eighteenth-century common law. Second, Salcedo’s focus on the substantiality [*15] of the harm in receiving a single text misunderstands Spokeo. HN16 Our historical inquiry asks whether “an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S. Ct. at 1549 (emphasis added). That is, “[o]ur inquiry is focused on types of harms protected at common law, not the precise point at which those harms become actionable.” Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019); accord Gadelhak, 950 F.3d at 462-63 (“HN17 [W]hile the common law offers guidance, it does not stake out the limits of Congress’s power to identify harms deserving a remedy.”). Salcedo’s focus on the substantiality of an alleged harm threatens to make this already difficult area of law even more unmanageable. We therefore reject it.