made please the court a miracle woman with the firm of carlton fields jordan burt with me is dorothy kafka represent the hana appellants here and the issue presented by this appeal is whether a solitary text sent by a lawyer to his former client promoting future services with the discount constitutes a concrete injury in  fact sufficient again to have standing under the t c p argument is that is not like to begin by quoting  but the number of t c p a cases filed each year skyrocketing from fourteen in two thousand and eight to nine thousand nine hundred eight in the first nine months of two thousand and fourteen and that in practice the t c p a has strayed far from its original purpose in fact in the latest year available two thousand and seventeen the number of newly filed t c p eight cases hit forty four hundred and there were three trillion tax sent by americans in two thousand and seventeen  the issue here is whether or not a concrete injury has presented and under spokeo to the supreme court has made it clear that a statutory injury or statutory claim does not necessarily produce a concrete injury and we're saying here that there is no concrete injury this is an abstract your it didn't type your phone that's right there's a distinction there but what if it were twelve text messages rather as one well i think it course every case involves a line drawing you know where i'm going but you know of course but what's really at issue here is whether or not a solitary text no matter where you draw the line i'd say one text is too few but you know where you draw the line is when does it become an intrusion and an intrusion has to be conduct that's highly offensive to the reasonable person that's what the law of intrusion is it's not injury in fact whether it's procedural or not i also think it's a hard distinction to draw in the context of well is this a case where for c j because there was an consent or is this a case where it was su opinion in which you were on a panel which points out that the f c c decided it did and unless you do a hobbs act appeal or if you look at it from chevron point of view you're stuck with that but that's not the test we're talking about but we're talking about here is where congress elevates conduct that wasn't enough for suit before that counts as to what congress meant congress didn't do that here the f c c did this here the underlying purpose of the standing requirement is separation of powers so you have congress not having ever dress tax let's assume the text would qualify set aside that question i'm sorry to set aside the question of whether a text qualifies that's what you're talking about the f c c dictated right by the f decided to construe the act that way but what i'm saying is the test for deciding whether congress is elevated to harm is whether congress did it and congress well if we were talking about a ta and congress congress clearly elevated that right no and so i'm saying i mean if we're talking a c c did we're talking about facts i'm sorry yes yes that's correct but that the the so if a text qualifies that's a substantive violation isn't that right possibly i still think that that's not entirely clear but let's assume it did let's assume it did they still would have to be a concrete injury if you don't get away you don't get out of having a concrete injury of fact by calling it procedural or calling it substantive and your argument for why this isn't a concrete injury is is what is didn't tie up his  does it's because several fold one that it doesn't disable the cell phone it doesn't shift the cost of advertising to  the to the the recipient it it also is not an invasion of privacy that's the other argument here because it isn't highly offensive conduct it's it's not intrusion the way intrusion is understood or could ever be understood this is a simple text from a lot lower to his former client and is that is that in any way relevant that there is a prior relationship here well there it could be this was a facial challenge where there is a prior relationship the act doesn't apply and of course it is clear that there was a prior relationship that's a fact that is clear from the complaint but to me the critical point is that this is an abstract injury this is not this does not cause an invasion of privacy it it is not highly offensive conduct to the reasonable person so just we're well so we're clear on what the complaint says yes and it given that it's facial challenge we're looking at the allegations of the complaint that's correct the plaintiff alleged that the text message caused him to waste his time respond by responding and during the time or during that time neither he nor his cell phone were available for other is that right yeah well his cell phone is available because you can get it received text messages when you're looking at a text you know it doesn't disable you what he's complaining about is a waste of time he says and i would argue that that's just the abstract violation of the statute it doesn't rise to being in an invasion of privacy unless the reasonable person would find that highly offensive and the the perry case gives examples of it it's like steamy open someone's mail it's like going to you know trespassing in our house and looking at them it's it's doing agree just things that are intrusive it's not a single solitary text and as i cautioned at the beginning there is a flood there's whole ready a flood of these cases with forty trillion tax do you really want to create a cause of action where somebody sends one and it's relating to a prior relationship between a lawyer and his client i just think that would be a big mistake is there any case that says that tying up the fax line is the only type of injury that would confer standing under the t c p well i mean  cases yes but but what's the authority for the idea that that's the only type of injury that would confer standing in other words that his cell phone would have to be tied up for some period of time i think they say that do they say well there are cases that are violation premised on some inaccurate disclosure of information is sufficient the supreme court and spoke explicitly rejected the devotion that every byner in accuracy reported in violation of  harm or present any material risk of real harm the court gave the example of an incorrectly reported zip code without more could not produce concrete harm then the court went on to say the spokeo requires some examination of the nature of the specific alleged in accuracies to ensure that they raise a real risk of harm to concrete interests and then i think the keys key line put slightly different leave the court suggested that even if congress to terminate that inaccurate credit reporting generally causes real harm to consumers it cannot be the case that every trivial or meaningless inaccuracy does and that's what my argument is today yelling a single email from your former lawyer don't you forget that problem with the ticket again you'll get a discount is a trivial and meaningless violation and it should not be sufficient for a case you know to be based on that or it's injury in fact or it's concrete both history and the judgment of congress to identify concrete harms mr saul sado alleges here at least two such harms the first is the privacy harm the unconsented auto dialer text call to his cell phone and the second is the loss of his time here history and the judgment as well as this court's precedent support the concreteness of these multiple harms import is not a de minimus injury because you're received similar text messages one text message right the class members may or may not have received more than one text message the standing in korean spokeo confirms this is really about the the name the class representative so what we're concerned with here is whether mr cell sado suffered a concrete harm and this court as well as the supreme court have repeatedly made clear that what counts for identifying the concreteness of a harm is the quality not quantity so for instance in saladin a case that our brief discusses talks about says that there's no minimum quantitative limit the focus is on the qualitative nature of the injury regardless of how small the messages that were injuriously and one text message is also ensure eous in this regard is that true i mean let's and we're the other side and i understand why they don't want to draw a line but comparing one hundred unsolicited text messages versus one unsolicited text message i mean we're all so phone consumers that there is a difference in that how is one not a de minimus harm how do you link one with one hundred it i true that under the common tort law is is defense counsel was was referencing to have a tort violation it may be that more more calls are needed but the inquiry about the concreteness of the harm is not about the number of calls it's about the type of harm congress here made an objective judgment which is consistent with the objective standard tort law that that any unconsented autodialer text or scuse me call to a cell phone in a minute congress to be a concrete harm in that regard this court this case is similar to saladin saladin was an establishment clause case that involved plaintiff's offense at a smudge on a stationary there was a seal that was printed on stationery leave a city government stationery that was too small to read it had the word christianity but the way it was printed on the stationery was not not something that could be made out and in that case there was an argument that  ffense was not as great as the offense felt in other establishment clause cases and that's where again this court said there's no minimum quantitative limit the focus is on the qualitative nature and in this court reach a similar opinion in the raven county case in fact spokeo discusses that concrete harms can be both those that are measurable and those that aren't and if you had an exception based on number it be hard to ever have any in measurable concrete harms and so certainly i just finally on this point say that one text message and certain in this part this case is actually a three part text message as you can see from the complaint is certainly comparable to the one minute of facts transmission time that was the concrete harm in palm beach and so to the question about text messages what congress congress's judgment in the t c play was that  call is a concrete harm and it's appropriate for this court to apply congress's judgement in this case because a text call is simply a modern day type of call in that regard this case is no different from perry which is where this court looked at the video privacy protection act in one thousand nine hundred passenger wake of the bork hearings about disclosure of video store rental records and this court concluded that  violation of the video privacy protection act was a concrete harm when it was applied to a very modern day technology a mobile app that certainly didn't exist at the time while technology has changed the the tasked with implementing the statute did reach that interpretation of the statute that a voice call and text call are both within its bounds and that judgment is certainly reasonable and i would just add on that point that in campbell wald justice roberts dissent which it which noted that all the justices in that case agreed that at the time the plaintiff filed suit he had standing that was a case involving a violation of the same provision of the t c p a here and were also the violation was based on text messages rather than rather than phone calls so when we look at this  back to it we are saying so we do have congress commenting on a cell phone call but congress hasn't said anything about regulating text messages aren't necessarily the f c c has stepped in but aren't you  asking us to apply a new kind of chevron deference in effect no your honor congress judgment was about a call this is a modern day type of call just like using my apple i phone today over the wireless systems that are available today is a change in technology but it's still a call even though my apple i phone and that the types of systems for transmitting cellular calls today didn't exist at the time the t c p it was pass again the court made that extension in perry and it's also appropriate because the harm here the privacy harm is the same this privacy harm is supported both by history and the judgment of congress my colleague repeatedly stated that this wouldn't be enough to be a common law harm because it's not it wouldn't be highly offensive to the reasonable person that's not the test that spokeo sets out with the court is to look at both the judgment of congress and history is very strong indicators of whether harm is concrete and on the history front to look at whether there's a close relationship to the common law harm and here there is that close relationship under common law phone calls are recognized in the restatement as a way that someone's privacy can be invaded as an intrusion upon seclusion in a variety of other contexts the supreme court has recognized  intruding on someone's right to be left alone through unwanted communications is a protectable interest based on that argument you would have to concede that if a person had their cell phone set up for these messages to go to a trash folder or if you block those calls then it would not be an injury concrete injury if the person literally never knew that the communication came in which is not the case here i would agree that that's not a privacy harm there might be other harms depending on how the cell phone is affected and and there might be a risk of harm which is another topic that book addresses that the privacy harm here the actual privacy harm is about the communication and here it's clear from conclusion that this harm and again the nature of this harm is concrete and that's the question before this court not whether or not it would rise to the level of a tort harm this is storable reference point is fully consistent with and supported by congress's judgment here and this is an example of congress as spokeo says elevating a concrete injury to the status of the legally cause one this statute itself references the privacy purpose in to see the detailed statutory findings that were in the session law repeatedly reference privacy is the overriding and importantly in number thirteen of those of those findings makes clear that congress's concern is not attached to a particular type of call or a particular type of sender and so the argument that that somehow this is exempt because it's from a former lawyer just doesn't comport with congress's judgment and there is no exception in the  y for calls from someone with whom there was a prior relationship congress's judgment was was objective and it was supported by facts in the record the supreme court recognized mims that it was based on voluminous consumer complaints about abuses of telephone technology in the senate and house reports again make clear that privacy although not the only concern we have a separate facts concern but was was a cross cutting one that applied to all provisions of the two c p a it was as judge pryor was asking about earlier a substantive right not to receive these calls the technical and procedural provisions are in a different portion of the statute and it was backed up with a private right of action and statutory damages so in other words what we see here is that congress is one district court said in may vs got warranty liberalized and codified the application of a common law tort for particularly intrusive type of unwanted call so history so your argument is merely the receipt of the text message is the concrete harm it doesn't have to tie up the phone it doesn't have to inconvenience the individual it simply receipt that's the invasion of privacy that is the privacy harm in which is a separate question from whether it would have been in vision of privacy in our common law separately and apart from that mr saul sado has alleged other concrete harms the waste of his time as well as an availability of a cell phone and on the waste of his time this loss of time that is involved in you know seeing what's on your phone and and in addressing a text message is concrete under this court's recent decision in pedro versus equifax in that case which involved a problem with a credit report that required the plaintiff to solve the problem this court looked at the waste of time and decided that was a concrete injury importantly by referencing palm beach golf which is this court's t c p a case about tying up a fax machine it certainly makes sense that if taking away a fax machines time is concrete injury then taking away a person's time is concrete injury and again this is this is a perceptible harm you can certainly see the difference between tying up a fax machine and having to do the work necessary to clear up a credit report and dealing the less than a minute that it would take to deal with unsolicited text i don't know the distinction between one minute transmission time on a fax machine and a those time it's a question of time in both cases mr saul saito does not allege here that his line was tied up in the same way that that the fax machine line is tied up but he does allege that his time was wasted and understand so the complaint states that it wasted his time answering or otherwise addressing it that's an allegation intended to include reading it or otherwise addressing it if we need to develop those facts further in this case we will but the can we look to the complaint for what what that is we don't have any other record of and no this is that's that's correct this is a facial challenge and the allegations in the complaint that he wastes time answering or otherwise addressing it is certainly sufficient to to meet the pleading standard which is all that is required of the stage to give notice of of what was involved i want to address a couple of other points the policy concerns about the number of t c p eight judgments or cases are not relevant here as this supreme court cautioned in lexmark that it's not the role of the court to apply an independent policy judgment to limit a cause of action just for prudential recent so again the focus here is whether or not there's a concrete injury not the number of lawsuits that may exist in the world also on palm beach golf there's nothing that suggests that that is the only concrete injury so in conclusion i would just emphasize that mr saul saito here has to to at least two independently concrete injuries that are supported by history judgment of congress and this court's precedents most recently in perry in pedro and for those reasons we request of the court affirmed the district court's opinion because they didn't sit or text and second i argue if you look at the common law this would not be an invasion of privacy under the common law i don't hear really any meaningful response to the point what do you say in response to her point that that's exactly what happened in perry that it was extended to a slightly different technology the intent of congress in an acting the i think it was the v p p a in perry first of all it's an information control of information case which i've always been treated differently when i'm either trying to get information from the government or control information about myself second there was an allegation is is there a case where the supreme court has carved out information in the way that you're talking about and it's really the lower courts i think honestly that have done that but but in a way in any event in perry what happened was the allegation was that the information was personal information about this is known as the bork statute by the way the information about the videos were gathered and then disclosed to a third party now in the end the court when it looked at the merits of the second half of the opinion said it wasn't really that's not really what happened but it said the allegation of the disclosure is sufficient because that's as important as it might seem from a question and that's because if you look at spokeo it says this case primarily concerns injury in fact the first and foremost of standing story elements and it goes on to say to establish injury in fact a point of must show that he or she suffered in a vision of a legally protected interest that is concrete in particular as an actual or imminent not conjecture hypothetical it in that in any and any standing case that has to be done then there was something made of what the act was about and the act was abolished preventing phone calls this part of the act the facts the facts there's a separate part of the act on faxes and that's why it makes so much sense to say tying up a fax machine is the concrete is a concrete injury because you're actually tying up somebody's fax machine they can't get work done and you're also shifting the cost but there's a separate section of the law but the part we're talking about it was directed at phone calls to residences and there's just a ton of stuff in the findings in the  and senator hollis was a sponsor and others that make it clear that what they were worried about was phone calls at dinner time at night two hundred thirty calls in six months two hundred ninety four and another that first question if we have twelve text messages you would agree that we would be closer to having a con oh sure but i don't know let's i don't run away from the qualitative point right but limiting my argument is the call my argument is one doesn't produce the qualit harm that this was designed to prevent is isn't and we're all people have that you're all people would you be highly offended by receiving a fact or at a text from your former lawyer saying hey if you get a ticket again or well let me finish my hypothetical of course well facts messages you would it i'm sorry text messages you would agree would be concrete injury could become could be but let's assume that those twelve text messages were from twelve employees of the same law firm sending the same facts you would you would be able to argue you didn't have standing with regard to any of those for the arguments that you've made but you've acknowledged that there may be actual injury i think to meet the