Whether receipt of a single unsolicited ringless voicemail or text message constitutes a concrete injury in fact sufficient to establish Article III standing under the Telephone Consumer Protection Act, or whether such harm must be similar in degree, not merely in kind, to a cognizable common law injury

No question identified. : injury as long as it is “similar in kind” to a harm actionable under common law. Dickson v. Direct Energy, LP, 69 F.4th 338, 348 (6th Cir. 2023) (emphasis in original). The court thus held that receipt of a single unsolicited voicemail was similar in kind to the harm suffered from an intrusion upon seclusion, and therefore constituted a concrete injury under the Telephone Consumer Protection Act’s prohibition against unsolicited automated calls. Id. at 340-41, 348-49. Like the Sixth Circuit, the Second, Third, Fifth, Seventh, Eighth, and Ninth Circuits have held that an alleged harm need only be similar in kind, and not in degree, to a harm actionable under common law to constitute a concrete injury. Thus, the Third and Eighth Circuits have held that receiving only one or two unsolicited calls and voicemails still constitutes a concrete injury under the Telephone Consumer Protection Act. See Susinno v. Work Out World Inc., 862 F.3d 346, 350-52 (3d Cir. 2017); Golan v. FreeEats.com, Inc., 930 F.3d 950, 957-59 (8th Cir. 2019). Similarly, the Second, Fifth, Seventh, and Ninth Circuits have held that receiving even one or two unsolicited text messages gives rise to a concrete injury. See Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 92-93 (2d Cir. 2019); Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 689-93 (5th Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461-63, 463 n.2 (7th Cir. 2020) (Barrett, J.); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017). By contrast, the Eleventh Circuit has repeatedly held that an alleged harm that “bear[s] a passing resemblance” to a harm actionable under common law, yet “differ[s] so significantly in degree,” does not constitute a concrete injury. See Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019) (receipt of unsolicited text does not constitute concrete injury in fact); Grigorian v. FCA US LLC, 838 F. App’x 390, 392-94 (11th Cir. 2020) (per curiam) (receipt of unsolicited ringless voicemail does not constitute concrete injury in fact); Drazen v. Pinto, 41 F.4th 1354, 1862 (11th Cir. 2022) (reaffirming Salcedo), reh’g en banc granted and opinion vacated, 61 F.4th 1297 (11th Cir. 2023) (oral argument held on June 18, 2023). This circuit split is well-recognized. See, e.g., Gadelhak, 950 F.3d at 461 (noting that whether plaintiffs have standing after receiving an unsolicited automated text is a question “difficult enough to have divided the circuits”); Cranor, 998 F.3d at 692-93 (recognizing the circuit split). 2. Applicant Direct Energy, LP provides electricity and natural gas services to homes and small businesses, and offers maintenance and protection plans for residential heating, cooling, electrical, and plumbing systems. Direct Energy retained a third-party marketing company, Total Marketing Concepts, to advertise its services. Mr. Dickson received an unsolicited ringless voicemail from Total Marketing Concepts, and his iPhone transcribed that voicemail into text. Dickson v. Direct Energy, LP, 2022 WL 889207, at *3 (N.D. Ohio Mar. 25, 2022). Mr. Dickson was never charged for the voicemail. Jd. His “only recollection appears to be that at one point in time he read the [voicemail] and subsequently forwarded it on to [his] counsel.” Jd. Nevertheless, Mr. Dickson filed a class action lawsuit, asserting that Direct Energy had violated the Telephone Consumer Protection Act. See 47 U.S.C. § 227(b). He sought $500 in statutory damages for every unsolicited ringless voicemail that Total Marketing Concepts allegedly distributed on Direct Energy’s behalf, with potential treble damages for willful violations bringing the total per violation up to $1,500. See id. § 227(b)(8). 3. On March 25, 2022, the U.S. District Court for the Northern District of Ohio dismissed Mr. Dickson’s complaint for lack of standing. The court noted that circuits are “divided over the issue of standing as it relates to [text messages and ringless