2021 ROBERT L. TULLIS MOOT COURT COMPETITION

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2021 ROBERT L. TULLIS
 MOOT COURT COMPETITION

                Whale Quick Clinic, Inc. v.
                 Mary Margaret Blanchard

This case file is adapted from the NYU Moot Court Casebook, Volume 44 (2020) for educational purposes
        only and as licensed under the Creative Commons BY-NC-SA 4.0 International License.
No. 21-108

                   IN THE

 Supreme Court of the United States
         __________________________

       WHALE QUICK CLINIC, INC.,

                                      Petitioner,

                      v.
     MARY MARGARET BLANCHARD,

                                      Respondent.
         __________________________

     ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
         FOURTEENTH CIRCUIT

           Record on Appeal, Page 1
WHALE QUICK CLINIC, INC., Petitioner,
                                               vs.

                  MARY MARGARET BLANCHARD, Respondent.

                                        August 16, 2021
                                          No. 21-108

Petition for writ of certiorari to the United States Court of Appeals for the Fourteenth Circuit
GRANTED.

The issues before the court are:

   (1) Whether a consumer must suffer actual concrete damages for that consumer to have
       standing to sue under the Telephone Consumer Protection Act.

   (2) Whether an unsolicited text message disclosing blood test results would be highly offensive
       to a reasonable person as defined by section 652B of the Second Restatement of Torts.

Arguments will be heard on an expedited basis. Counsel for petitioner Whale Quick Clinic, Inc.
shall present arguments first.

                                   Record on Appeal, Page 2
STATEMENT OF THE CASE1

        Beginning in March 2020, the Commonwealth of New Walt was monumentally affected
by the global pandemic of CURSID-19. CURSID-19 is a novel bird flu that is much deadlier and
more contagious than the seasonal flu. Thought to have originally developed in wolves before it
crossed over into humans, CURSID-19 is spread from person to person through respiratory
droplets. These droplets are produced in high numbers when an infected person coughs, sneezes
or talks. These droplets can land in the mouths or noses of people nearby and can be inhaled
through the lungs. The symptoms of CURSID-19 include fever, chills, muscle aches, loss of taste
or smell, trouble breathing and chest pains. In extreme cases, CURSID-19 can be deadly. Older
adults and people with pre-existing medical conditions have the highest death rates.

         To prevent the spread of CURSID-19, the New Walt government mandated that all citizens
of New Walt wear face masks in public, religiously wash their hands, and maintain a distance of
six feet away from other people. Despite these measures, New Walt’s largest city, Storybrooke,
was hit hard early in the pandemic. Over 1,000 Storybrooke residents died, many in skilled nursing
facilities.

        New Walt was able to limit the virus’ spread by imposing a mandatory quarantine from
early April 2020 through the end of June 2020. All non-essential businesses were closed, and
residents were instructed to stay at home as much as possible. Through these efforts, New Walt
greatly limited the spread of disease.

        In July 2020, New Walt allowed non-essential businesses to open with CURSID-19
precautions in place. The governor of New Walt, Rumple Gold, was adamant about reopening the
public school system.

        Blue Bird Elementary School is a public school located in downtown Storybrooke. Most
children attending Storybrooke come from families of limited economic means. Many of these
children have no internet access at home and would not be able to participate in virtual learning.
At a press conference in late July, Governor Gold identified Blue Bird as an example of a school
that needed to open to serve the greater public good. He implored New Walt residents to take the
pandemic seriously so schools like Blue Bird could open in the fall.

       In response to the press conference, the Blue Bird community sprang into action. The
school superintendent, Regina Mills, created the school’s CURSID-19 Safety Protocols (the
“Safety Protocols”). Pursuant to the Safety Protocols each employee had to schedule a blood test
at Whale Quick Clinic, Inc., a walk-in medical clinic with several branches in Storybrooke.
Headquartered in the neighboring State of West Bay, Whale Quick Clinic had two clinics within
walking distance of Blue Bird. Once the test was scheduled, the employee had to report the date

1         The facts set forth in this “Statement of the Case” have been agreed upon by both parties. They may be cited
by either party and neither may deny any facts set forth in this record. These are the only facts agreed upon by both
parties. Factual allegations in pleadings or motions may not be mutually agreed upon.
          The parties have further agreed that Whale Quick Clinic qualifies as an “automatic telephone dialing system”
under the Telephone Consumer Protection Act. Thus, arguments on this issue will not be considered by the Court
either in written briefs or oral arguments.

                                           Record on Appeal, Page 3
of the test directly to Superintendent Mills. From the date blood was drawn for the test, the
employee had to quarantine at home. The employee could only interact with other Blue Bird
employees and household family members—all social gatherings were prohibited. This quarantine
had to be respected from the date of the blood draw until school began. Once the employee received
the test results, the results had to be reported to Superintendent Mills. Only those employees with
negative tests were allowed in the Blue Bird building.

        Blue Bird began its training program on the Safety Protocols on August 16, 2020. With the
school year set to begin on September 16, 2020, the school had only a month to bring all employees
up to speed.

        Mary Margaret Blanchard resides in Storybrooke and has worked at Blue Bird for eight
years as a second grade teacher. She began teaching at the same time as Kathryn Nolan, who taught
fourth grade at Blue Bird. Mary Margaret and Kathryn were close, often socializing outside of
work. Neither had tenure.

       Both women were sitting together in the auditorium during the August 16, 2020 training.
Superintendent Mills explained the Safety Protocols and distributed written copies to all
employees. Superintendent Mills emphasized how important the quarantine requirement was. She
repeated several times that all employees were expressly forbidden from attending any social
functions after they had given blood for the CURSID-19 blood test.

        Given the lag time between when tests were taken and results were disclosed,
Superintendent Mills urged employees to test as early as possible. “No employees will be allowed
in the building without proof of a negative test,” she explained. “We will have zero tolerance for
anyone who violates this policy,” she continued. “The safety of our children is at stake. Anyone
who violates this policy will be terminated.” All employees, including Mary Margaret and
Kathryn, signed a pledge agreeing to abide by the Safety Protocols.

       Mary Margaret notified Superintendent Mills in writing that she was going to take her
CURSID-19 test on the following Wednesday, August 19, 2020. After submitting this notice, Mary
Margaret changed her mind. Not wanting to quarantine for an additional week and a half, she
cancelled that appointment and instead scheduled an appointment for Friday, August 28, 2020.
She did not tell Superintendent Mills.

        On August 28, 2020, Mary Margaret went to Whale Quick Clinic to get blood drawn for
her CURSID-19 test. Whale Quick Clinic gave her a form to complete which asked how she
wanted to receive the test results. She filled out the form, listing her name and address. For the
section titled “contact phone number” she wrote in her personal cell phone number. Mary Margaret
didn’t have a landline and had no other number to provide. The form did not specify whether
results would be communicated via telephone call or text message. In the margin of the form next
to her cell phone number, Mary Margaret wrote “DO NOT TEXT, CALL ONLY.” Before she
went back to have her blood drawn, Mary Margaret also told the receptionist at Whale Quick Clinic
that she did not want to receive her results via text message. The receptionist promised to make a
note in the file.

                                    Record on Appeal, Page 4
The blood test was quick and painless. Whale Quick Clinic advised Mary Margaret that
she would likely receive her results within 72 hours.

         Mary Margaret was thrilled by this news. Each year, her neighborhood hosted a huge end-
of-summer barbeque. She assumed she would have her negative test results back well before the
festivities.

       By 5pm on the Sunday before the barbeque, August 30, 2020, Mary Margaret had heard
nothing from Whale Quick Clinic. She called Whale Quick Clinic and was sent directly to
voicemail. She left a message saying that she would like to know her test results as soon as
possible. Mary Margaret did not reiterate her request that the results be communicated via
telephone call rather than text message.

        By the time the barbeque was set to begin on September 2, 2020, Mary Margaret had not
received her results. She attended the barbeque anyway but was careful to wear a mask and
maintain a safe social distance from everyone else at the barbeque. Several dozens of people were
at the barbeque. Mary Margaret knew she was violating the quarantine, but she assumed no one
would ever find out. Unbeknownst to her, several people attending the barbeque took photos and
tagged her on social media. Superintendent Mills saw the photos and realized Mary Margaret had
violated the quarantine. She began the process of terminating Mary Margaret.

        The next day, on September 3, 2020, Mary Margaret and Kathryn met at a park near Mary
Margaret’s house for lunch. No one else was there. Over lunch, Mary Margaret described the
barbeque. Kathryn was surprised to learn that Mary Margaret had gone out in public so close to
the start of the new school year. Kathryn explained “I called Whale Quick Clinic to get an
appointment the day we had our training. When I called, they had a long waitlist and limited
availability.” Kathryn continued “I can’t believe you got an appointment this late, I’ve been
quarantining for several weeks now and it’s been hard.” Mary Margaret abruptly changed the
subject.

       During this discussion, Mary Margaret had her cell phone sitting on the table between her
and Kathryn. Her ringer was turned to silent. As the two were chatting, Mary Margaret received a
text message which immediately popped up on the phone’s screen. The text message read “Your
blood test results from 08/28/2020 are negative. Mention code CURSID for $10 off an influenza
vaccination.” Kathryn saw the message but said nothing to Mary Margaret.

         Internally, Kathryn felt torn. She did not know if the text message related to a CURSID-19
test or some other blood test. If it was related to a CURSID-19 test, Mary Margaret had violated
the Safety Protocols. Kathryn reasoned Mary Margaret could have been infected at the barbeque.
Kathryn thought about the Blue Bird students and how Mary Margaret’s selfishness had put them
at risk. She thought of the school librarian, who was in a particularly high-risk age group. Kathryn
realized that Mary Margaret had even potentially exposed her to the virus during their lunch
together.

       Out of concern for everyone’s safety, Kathryn decided that she would tell Superintendent
Mills. She called the next day, September 4, and told Superintendent Mills everything.

                                    Record on Appeal, Page 5
Superintendent Mills thanked Kathryn for her candor and hung up. Although she did not tell
Kathryn, Superintendent Mills had already completed all the necessary steps to terminate Mary
Margaret and had been planning to call Mary Margaret later that afternoon to deliver the news.

        That afternoon, Superintendent Mills called Mary Margaret and questioned her at length.
Mary Margaret admitted that she had changed her testing date, had failed to disclose the change to
the school, and had attended the barbeque during what should have been a period of quarantine.
Mary Margaret asked whether Kathryn had contacted Superintendent Mills. Superintendent Mills
said “It’s irrelevant. I saw photos of you on social media at the barbeque and that alone was
sufficient grounds for your termination.” Mary Margaret begged to keep her job. She pointed out
that she still had time to take another test before the school year started. She offered to take one
immediately. Superintendent Mills cut Mary Margaret off, citing the school’s zero tolerance
policy. Mary Margaret was terminated that day and has been unemployed ever since.

       Mary Margaret was angry. She felt as though her privacy had been invaded through the
text message sent by Whale Quick Clinic. She hired a lawyer who filed a complaint on Mary
Margaret’s behalf on October 14, 2020 in the United States District Court for the Eastern District
of New Walt.

        The complaint had two counts. In Count I, Mary Margaret asserted that Whale Quick Clinic
had violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, by sending Mary Margaret
an unsolicited text message. The complaint contained no assertion that Mary Margaret had suffered
actual damages. Indeed, by the time the complaint was filed, Mary Margaret had learned that the
social media posts had led to her firing. The only harm alleged in the complaint was the receipt of
the unsolicited text message.

        In Count II, Mary Margaret asserted that Whale Quick Clinic had violated her right to
privacy under New Walt law which adopts the definition set forth in section 652B of the Second
Restatement of Torts. Mary Margaret argued that because the test results were highly personal and
she had notified Whale Quick Clinic that she did not want to receive those results via text message,
the text message was highly offensive.

         In response, counsel for Whale Quick Clinic filed a motion to dismiss the complaint under
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On January 6, 2021, the
district court granted the motion to dismiss.

        Mary Margaret immediately filed an appeal. On appeal, the United States Court of Appeals
for the Fourteenth Circuit reversed the finding of the district court, holding that Mary Margaret
should have been allowed to proceed on both claims. In an order dated March 25, 2021, the circuit
court issued its order reversing the dismissal below.

       On April 21, 2021, Whale Quick Clinic filed a petition for certiorari with the United States
Supreme Court. The petition was granted on August 16, 2021. A briefing and argument schedule
followed.

                                    Record on Appeal, Page 6
IN THE UNITED STATES DISTRICT COURT
                      FOR THE EASTERN DISTRICT OF NEW WALT

                                               :
Mary Margaret Blanchard,                       :
                               Plaintiff,      :
                                               :
       -against-                               :              COMPLAINT
                                               :
Whale Quick Clinic, Inc.,                      :
                               Defendant.      :
                                               :

        Plaintiff, Mary Margaret Blanchard, moves the Court for entry of judgment in her favor
against Defendant, Whale Quick Clinic, Inc., and in support of such Complaint avers as follows:

                        NATURE OF ACTION AND JURISDICTION

      1.     This is a civil action seeking damages from Defendant for violations of the
Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and New Walt state law.

         2.      Count I of this complaint arises under a federal statute. This Court has jurisdiction
in this matter pursuant to 28 U.S.C. §§ 1331, 1343. As to Count II, this Court has diversity
jurisdiction as Defendant is headquartered outside the Commonwealth of New Walt and Plaintiff
is a resident of New Walt. 28 U.S.C. § 1332.

       3.       This Court is an appropriate venue for this cause of action pursuant to 28 U.S.C.
§ 1391(b)(1)–(2). The actions complained of took place in this judicial district, both parties are
located in this district, and evidence relating to the claims is located in this district.

                                             PARTIES

      4.     Defendant, Whale Quick Clinic, is a business incorporated in the State of West Bay.
Whale Quick Clinic operates walk-in medical clinics in Storybrooke, New Walt.

       5.     Plaintiff, Mary Margaret Blanchard, is an adult individual who resides in
Storybrooke, New Walt.

                                              FACTS

       6.    Beginning in March 2020, the Commonwealth of New Walt was affected by the
global pandemic of CURSID-19.

       7.      CURSID-19 is a novel bird flu that is much deadlier and more contagious than the
seasonal flu. CURSID-19 infection can be detected by blood test.

                                     Record on Appeal, Page 7
8.    On August 28, 2020, Ms. Blanchard went to a Whale Quick Clinic in Storybrooke
for a CURSID-19 blood test.

      9.      She provided Whale Quick Clinic with her cell phone number but notified Whale
Quick Clinic verbally and in writing that she did not consent to receive text messages.

       10.      On September 3, 2020, Whale Quick Clinic sent Ms. Blanchard a text message. The
text message read, “Your blood test results from 08/28/2020 are negative. Mention code CURSID
for $10 off an influenza vaccination.”

        11.    At the time the text was received, Ms. Blanchard had her phone ringer set to silent.
Nonetheless, she was in a public park with Kathryn Nolan, a friend and co-worker. Ms. Nolan saw
the text message.

      12.    Ms. Blanchard’s employer, Blue Bird Elementary School, learned of the text
message from Ms. Nolan.

         13.     Ms. Blanchard’s employer terminated her employment on September 4, 2020.

                                      CAUSES OF ACTION

                                           COUNT ONE

               Violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227

         14.     The foregoing allegations are incorporated as if re-alleged herein.

         15.     Plaintiff received a text message from Whale Quick Clinic sent to her personal cell
phone.

       16.     The text message was commercial in nature. It advertised a discount on the
influenza vaccine.

       17.     The text message was unsolicited. In fact, Plaintiff indicated twice that she did not
consent to receive text messages from Whale Quick Clinic.

         18.     The text message constitutes injury under the TCPA.

         19.     For violation of the TCPA, Plaintiff seeks damages of $500.

                                      Record on Appeal, Page 8
COUNT TWO

                          Invasion of Privacy Under New Walt Law

         20.   The foregoing allegations are incorporated as if re-alleged herein.

         21.   Plaintiff received a text message from Whale Quick Clinic sent to her personal cell
phone.

         22.   The text message was sent intentionally by Whale Quick Clinic.

         23.   The text message intruded into a private place, namely Plaintiff’s personal cell
phone.

        24.    The text message would have been deemed offensive by a reasonable person. It
communicated highly personal information, namely blood test results, and it was sent with no
warning such that anyone in the vicinity of the phone could see the message. Indeed, it was seen
by a friend and colleague of Plaintiff. Plaintiff had notified Whale Quick Clinic that she did not
want to receive the blood test results via text message.

         25.   For violation of the New Walt law, Plaintiff seeks damages in excess of $150,000.

                                    PRAYER FOR RELIEF

      WHEREFORE, Plaintiff Mary Margaret Blanchard requests judgment against Defendant
Whale Quick Clinic, Inc. to include all damages and other relief permitted by law.

                                                 /s/ Edith Alder
                                                 Edith Alder
                                                 Attorney for Plaintiff
                                                 Duperré & Hughes LLC
                                                 108 Moncton Street
                                                 Storybrooke, IF 04815

Dated: October 14, 2020

                                    Record on Appeal, Page 9
IN THE UNITED STATES DISTRICT COURT
                      FOR THE EASTERN DISTRICT OF NEW WALT

                                               :
                                               :
Mary Margaret Blanchard,                       :
                               Plaintiff,      :
                                               :
       -against-                               :
                                               :
Whale Quick Clinic, Inc.,                      :
                               Defendant.      :
                                               :

                                      MOTION TO DISMISS

        Defendant, Whale Quick Clinic, Inc., by and through undersigned counsel, moves this
 Honorable Court pursuant to Federal Rule of Civil Procedure 12(b) for an order dismissing with
 prejudice all claims of Plaintiff, Mary Margaret Blanchard.

         Plaintiff lacks standing to assert the Telephone Consumer Protection Act (“TCPA”)
 claim set forth in Count I of the complaint because she has alleged no injury-in-fact. For
 purposes of this motion, Defendant concedes that the TCPA applies to a text message and that
 this text message was both commercial and unsolicited. Under Rule 12(b)(1), this claim must
 be dismissed because the lack of standing deprives this Court of jurisdiction over the TCPA
 claim.

 Plaintiff fails to state a claim on Count II of the complaint because, as a matter of law, the receipt
 of one text message is not sufficiently intrusive to constitute an invasion of privacy. For purposes
 of this motion, Defendant concedes that it sent the text message and that it was sent to a personal
 cell phone which constitutes a private location. Under Rule 12(b)(6), this claim must be
 dismissed because a reasonable person would not have considered the text message to be
 offensive.

                                                       Respectfully submitted,

                                                       /s/ Sidney Glass
                                                       Sidney Glass
                                                       Attorney for Defendant
                                                       Pine, Blythe & Rowan, LLC
                                                       815 Westlake Street
                                                       Beantown, West Bay 23823
November 11, 2020

                                     Record on Appeal, Page 10
UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF NEW WALT

                                              :
Mary Margaret Blanchard,                      :
                              Plaintiff,      :
                                              :
       -against-                              :      OPINION AND ORDER
                                              :
Whale Quick Clinic, Inc.,                     :
                              Defendant.      :
                                              :

Rex George, District Court Judge

        A single text message is a momentary disruption to daily life. However, Plaintiff Mary
Margaret now attempts to make a federal case out of a lone text message. In her complaint, Ms.
Blanchard asserts two claims. In Count I, she alleges a violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227. In Count II, she alleges an invasion of privacy under
New Walt tort law. Neither claim, as pled, is sufficient. Therefore, both claims are dismissed with
prejudice for the reasons set forth herein.

       The allegations in Ms. Blanchard’s claim arise from a single text message she received on
September 3, 2020. The text message was not sent from a stranger; it was sent from Defendant
Whale Quick Clinic, Inc. (“WQC”), a clinic where she had given blood for a CURSID-19 test a
week prior. The text message contained both her test results as well as an advertisement for a flu
shot. Although she did not want to receive the results by text message, and although the text
message also included advertising, Ms. Blanchard suffered no harm as a result of the text message.
At the time she received the text message, she had already been fired by her employer for
irresponsibly attending a community barbeque notwithstanding the worldwide pandemic. She
received the text at the park, and it was seen by a friend and colleague. No reasonable person would
have found the lone text message to be offensive. WQC correctly argues that both claims fail.

       In Count I of the complaint, Ms. Blanchard alleges a violation of the TCPA. In 1991,
Congress enacted the TCPA to restrict interstate telemarketing. Mulhern v. MacLeod, 441 Mass.
754, 808 N.E.2d 778, 780 fn.7 (2004). Among other things, the TCPA creates a private right of
action whereby a person may seek compensatory or injunctive relief against a company that sends
an unsolicited commercial communication. 47 U.S.C. § 227(b)(3).

       Although the TCPA does not refer specifically to text messages, that is likely because they
did not exist in 1991 when the statute was enacted. It is now well recognized that text messages
are subject to the TCPA. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text
message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of
§ 227(b)(1)(A)(iii).”). KQC’s text was commercial, and it was unsolicited. The parties agree.
Therefore, at least facially, Ms. Blanchard states a claim for violation of the TCPA.

                                   Record on Appeal, Page 11
The problem, as WQC rightly states in its motion to dismiss, is that she lacks standing
because she has pled no true damages. Indeed, it was not the text message that caused Ms.
Blanchard to be fired, but rather it was her attendance at a barbeque that her employer learned
about through social media. WQC argues that the lack of damages means Ms. Blanchard lacks
standing to sue under the TCPA. This court agrees.

        Not every right has a redress in court. See Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th
Cir. 2019). Article III vests the judicial power in the federal courts and extends that power only to
“Cases” and “Controversies.” U.S. Const. art. III, §§ 1–2. One tool for determining that the matters
before us are truly cases or controversies, as understood by Article III, is the doctrine of standing.
See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). A plaintiff can prove standing only
if they have “(1) suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–
61 (1992) and Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–
81 (2000)).

         To establish standing, the plaintiff must prove an injury-in-fact that is concrete. See id. at
1548. The dollar value is irrelevant and may be trivial, but the injury must be real. See United
States v. Students Challenging Regul. Agency Procs., 412 U.S. 669, 689 n.14 (1973); see also In
re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 725 F.3d 65, 105 (2d Cir. 2013). In
defining what constitutes an injury-in-fact under a particular statute, courts consider congressional
intent. Spokeo, 136 S. Ct. at 1549. The mere fact that Congress has created a private cause of action
is not dispositive. Congress cannot legislate around the Article III jurisdictional requirement of
standing. See Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009).

       Although it is true that text messages did not exist in 1991, the TCPA has been amended
several times subsequent and Congress has never addressed text messages explicitly. That
Congress has not chosen to address text messages in the text of the TCPA means courts must use
deductive reasoning to intuit Congress’ intent in regulating these forms of communication.

        Congress’ focus on telemarketing, especially phone calls, reveals how different text
messages are from the primary communications Congress was concerned about when it enacted
the TCPA. When enacting the TCPA, Congress focused on its concern for privacy within the
sanctity of the home, a sanctity invaded by unrestricted telemarketing to landlines. Telephone
Consumer Protection Act, Pub. L. No. 102–243, § 2, ¶¶ 5, 6, 105 Stat. 2934 (1991) (codified as
47 U.S.C. § 227). In contrast, cell phones are often taken outside of the home and often have their
ringers silenced, presenting less potential for intrusion. That was the case here.

        Receiving a single text message is not an injury-in-fact. Courts have recognized that receipt
of a facsimile might constitute an injury, but that is because a facsimile takes time to load and
prevents other facsimiles from being received in the meantime. See, e.g., Palm Beach Golf Center-
Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015); Imhoff Inv.,
L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 633 (6th Cir. 2015). The same is not true of text messages,
which are received in a moment and which do not block other text messages that may be received

                                    Record on Appeal, Page 12
simultaneously. Courts have also recognized the printing costs associated with a facsimile as an
injury-in-fact. See, e.g., Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d 1362,
1366 (11th Cir. 2017). Text messages are not printed.

        This court finds the case of Salcedo v. Hanna instructive and well-reasoned. 936 F.3d 1162
(11th Cir. 2019). In that case the class plaintiff, John Salcedo, brought a class action lawsuit against
a law firm that sent him and other former clients an unsolicited text offering a discount on legal
services. Id. at 1165. Mr. Salcedo alleged that the text message caused him to waste time and that
it temporarily prevented him from using his cell phone for other purposes. Id. at 1167–68. The
court held that this single text message was an “inconsequential annoyance” and not a concrete
injury-in-fact. Id. at 1172. The same conclusion applies to WQC’s text message sent to
Ms. Blanchard.

        Ms. Blanchard has pled no injury, so she has no standing to sue. Amendment would be
futile. Ms. Blanchard has suffered no damages. For this reason, Count I is dismissed with
prejudice.

        In Count II of the complaint, Ms. Blanchard alleges an invasion of privacy under New Walt
law. New Walt law tracks the Restatement Second of Torts. New Walt recognizes the same four
types of invasions of privacy identified in the Restatement: intrusion, appropriation of name or
likeness, unreasonable publicity, and false light. See Restatement (Second) of Torts §§ 652A–652I.
An intrusion requires conduct that is “highly offensive to a reasonable person.” Restatement
(Second) of Torts § 652B. As examples of this tort, the Restatement lists eavesdropping and
wiretapping. See id. cmt. b. Indeed, where courts find an invasion of privacy it is typically in the
case of such objectively invasive conduct. See, e.g., Klein v. Com. Energy, Inc., 256 F. Supp. 3d
563, 594–95 (W.D. Pa. 2017) (fifty-five phone calls from a collection company to a wrong number
were offensive); Horgan v. Simmons, 704 F. Supp. 2d 814, 822 (N.D. Ill. 2010) (“examples of
actionable intrusion upon seclusion would include . . . peering into the windows of a private
home”) (quoting Benitez v. KFC Nat’l Mgmt. Co., 714 N.E.2d 1002, 1006 (Ill. App. Ct. 1999)).

        In contrast, as the Salcedo court recognized, “[s]imply sending one text message to a
private cell phone is not closely related to the severe kinds of actively intermeddling intrusions
that the traditional tort contemplates.” 936 F.3d at 1171. Indeed, if a text message can be
analogized to a telegram, they are not generally viewed as offensive. See Davis v. Gen. Fin. &
Thrift Corp., 57 S.E.2d 225, 226–27 (1950) (finding that receiving the specific telegram before the
court would not offend a person of “ordinary sensibilities”).

       In the absence of other courts examining similar facts, we agree with the reasoning in
Salcedo. One single text message, sent not by a stranger but by a company with which
Ms. Blanchard had chosen to do business, received in a public place, was not objectively offensive.

                                     Record on Appeal, Page 13
Again, amendment would be futile. The parties agree upon the facts. As a matter of law,
the single text message Ms. Blanchard received can never form the basis of a cognizable invasion
of privacy claim. For this reason, Count II is also dismissed with prejudice.

                                                   Rex George
                                                   Rex George, Judge
                                                   United States District Court
                                                   for the Easter District of New Walt

Dated: January 6, 2021

                                  Record on Appeal, Page 14
UNITED STATES COURT OF APPEALS
                             FOR THE FOURTEENTH CIRCUIT

                                               :
Mary Margaret Blanchard,                       :
                               Appellant,      :
                                               :
       -against-                               :               OPINION AND ORDER
                                               :
Whale Quick Clinic, Inc.,                      :
                               Appellee.       :
                                               :

Opinion by: E. Swan, Circuit Judge, joined by R. Ghorm, and A. Hopper, Circuit Judges:

        As the United States Supreme Court noted in Carpenter v. United States, a cell phone is
almost a “feature of human anatomy.” 138 S. Ct. 2206, 2218 (2018) (quoting Riley v. California,
573 U.S. 373, 385 (2014)). Indeed, a cell phone “faithfully follows its owner beyond public
thoroughfares” and into the most private areas—including the home. Id. Just as the consumer has
the right to avoid offensive, unsolicited telephone calls to her cell phone she also enjoys the right
to avoid similarly intrusive text messages.

         Appellant Mary Margaret Blanchard received such an intrusive text message from
Appellee Whale Quick Clinic, Inc. She filed suit, asserting claims for both violation of the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 and invasion of privacy. The
district court denied Blanchard her day in court, dismissing both claims. We now reverse the
district court below and hold that Blanchard should have been permitted to proceed on both claims.

        An appellate court reviews de novo a grant of a motion to dismiss, accepting the allegations
in the complaint as true and construing them in the light most favorable to the plaintiff. Dyer v.
Wal-Mart Stores, Inc., 535 F. App’x 839, 841 (11th Cir. 2013) (citing Glover v. Liggett Group,
Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)). Under this standard we address each of Blanchard’s
claims in turn.

        First, contrary to the district court’s reasoning below, Blanchard pled sufficient damages
to confer standing under the TCPA. It is true that Blanchard alleged no injury other than receipt of
the unsolicited text message. Although she was fired after the text message was disclosed to her
employer, it was not the text message itself that caused her to lose her job. The only damage alleged
and pleaded is the receipt of the text message itself. The legal question posed in this case is whether
her receipt of the unsolicited text messages, without any other injury, is sufficient to demonstrate
injury-in-fact. We hold that it is.

       The TCPA makes it unlawful for any person within the United States to use any telephone

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facsimile machine, computer, or other device to send to a telephone facsimile machine an
unsolicited advertisement. 47 U.S.C. § 227(b)(1)(C). The TCPA generally prohibits making
nonemergency, unsolicited calls advertising property, goods, or services using automatic dialing
systems and prerecorded messages to telephones and cellular phones. 47 U.S.C. § 227(a)(5);
§ 227(b)(1)(A)(iii). Although the TCPA does not define a “call,” the Federal Communications
Commission (the “FCC”), the agency implementing the TCPA, has interpreted the TCPA to
encompass both voice calls and text messages to mobile phones. The Supreme Court has endorsed
this interpretation. See Campbell-Ewald Co. v. Gomez, 557 U.S. 153, 156 (2016). The TCPA
provides for statutory damages of $500 per violation, which can be tripled to $1500 for willful
conduct. 47 U.S.C. § 227(b)(3).

       Here, the parties agree that the TCPA applies because the text message, which advertised
influenza vaccines, was an advertisement. The parties also agree that Blanchard refused to accept
text messages from Whale Quick Clinic and therefore that the text message was unsolicited. The
only question remaining is whether Blanchard pled sufficient damages to confer standing in federal
court.

         Article III limits federal judicial power to “Cases” and “Controversies.” See U.S. Const.
art. III, § 2, cl. 1. The concept of standing to sue limits the category of litigants empowered to
maintain a lawsuit in federal court to seek redress for a legal wrong. Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). To satisfy Article III standing, the plaintiff must have (1) suffered
an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992). A plaintiff establishes injury-in-fact if he or she suffered an invasion of a
legally protected interest that is concrete and particularized and actual or imminent, not conjectural
or hypothetical. Id. at 560.

        Although the Supreme Court has not addressed the issue before us in the context of the
TCPA, it did address a similar issue under the Fair Credit Reporting Act (the “FCRA”) in Spokeo.
In Spokeo, the Supreme Court recognized that in some cases, the mere violation of a statute alone
constitutes injury-in-fact. Spokeo, 136 S. Ct. at 1549. To determine whether a violation of a statute
is such an injury, the court must examine the history and judgment of Congress. Here, that
examination leads to an obvious conclusion that violation of the TCPA is an injury-in-fact.

        When enacting the TCPA, Congress made specific findings that “unrestricted
telemarketing . . . can be an intrusive invasion of privacy” and that unsolicited communications
are a “nuisance.” Telephone Consumer Protection Act of 1991, Pub. L. 102–243, § 2, ¶¶ 5, 10, 12,
13, 105 Stat. 2394 (1991). The session law for the TCPA itself stated:

       Banning such automated or prerecorded telephone calls to the home, except when
       the receiving party consents to receiving the call or when such calls are necessary
       in an emergency situation affecting the health and safety of the consumer, is the
       only effective means of protecting telephone consumers from this nuisance and
       privacy invasion.

Pub. L. 102–243, § 2, ¶ 12, 105 Stat. 2394, 2394–95 (1991). By identifying unsolicited

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commercial communications as a nuisance, a well-recognized concept from tort law, Congress
reflected its view that the communication alone was the damage.

       The TCPA establishes a substantive right—the right to be free from unsolicited commercial
communications. Congress identified these communications as a concrete harm and created the
TCPA so consumers could litigate to redress this harm. The text message Blanchard received is
exactly the harm Congress sought to redress by passing the TCPA. The text invaded Blanchard’s
privacy. That alone was harm enough.

       We hold that Blanchard alleged a concrete injury in fact sufficient to confer Article III
standing. In so holding, we join the courts in several other circuits that similarly reason. See, e.g.,
Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 92–95 (2d Cir. 2019); Van Patten v. Vertical
Fitness Group, LLC, 847 F.3d 1037, 1040–43 (9th Cir. 2017).

        Second, contrary to the district court’s reasoning below, Blanchard pled conduct sufficient
to state a claim for invasion of privacy. Like many other states, New Walt has recognized the
invasion of privacy torts laid out in the Restatement (Second) of Torts §§ 652A et seq., which
include the tort of intrusion upon seclusion.

       Section 652B, states as follows:

       One who intentionally intrudes, physically or otherwise, upon the solitude or
       seclusion of another or his private affairs or concerns, is subject to liability to the
       other for invasion of his privacy, if the intrusion would be highly offensive to a
       reasonable person.

Rest. (2d) Torts § 652B. Courts have interpreted section 652B to require a plaintiff to prove two
things: (1) an intentional intrusion into a private place, conversation, or matter; (2) in a manner
highly offensive to a reasonable person. See, e.g., Hanson v. Hancock Cty. Mem'l Hosp., 938 F.
Supp. 1419, 1435 (N.D. Iowa 1996).

        Here, Whale Quick Clinic has admitted that its text message intentionally intruded into a
private place, namely Blanchard’s cell phone. The only remaining question then is whether an
ordinary person would find such a text message highly offensive. We hold that an ordinary person
would.

        “The question of what kinds of conduct will be regarded as a ‘highly offensive’ intrusion
is largely a matter of social conventions and expectations.” Bogie v. Rosenberg, 705 F.3d 603, 612
(7th Cir. 2013). In determining whether conduct is offensive, courts consider “the degree of
intrusion, the context, conduct and circumstances surrounding the intrusion as well as the
intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those
whose privacy is invaded.” Id. (quoting PETA v. Bobby Berosini, Ltd., 895 P.2d 1269, 1282 (Nev.
1995)); Deteresa v. Am. Broad. Cos., 121 F.3d 460, 465 (9th Cir. 1997).

      Courts have recognized that “even in the social-media era, unsolicited phone calls and text
messages remain a significant intrusion on individuals’ privacy.” Stephens v. Farmers Rest. Grp.,

                                     Record on Appeal, Page 17
291 F. Supp. 3d 95, 122 (D.D.C. 2018); see also Gomez v. Campbell-Ewald Co., 768 F.3d 871,
876 (9th Cir. 2014) (“[T]he nature of cell phones renders the restriction of unsolicited text
messaging all the more necessary to ensure [residential] privacy.”), aff’d, 136 S. Ct. 663 (2016).

       Admittedly in dicta, the district court in Baldwin v. United States DOE, recognized that
unsolicited communications to a cell phone could be offensive. No. 18-1872 (EGS), 2020 U.S.
Dist. LEXIS 11191, at *12–13 (D.D.C. Jan. 23, 2020). In that case the government opposed a
public disclosure of mobile phone numbers under a Freedom of Information Act request. Id. The
government argued that the individuals who used those cell phones had a significant
personal privacy interest in minimizing unwarranted or unsolicited intrusion and harassment that
would be violated if the numbers were disclosed. The district court agreed and did not require that
the government disclose the phone numbers. Id.; see also Freeman v. MedStar Health Inc.,
187 F. Supp. 3d 19, 32–33 (D.D.C. 2016) (declining to order production of phone numbers due to
privacy concerns).

        The test of what is offensive is fact specific and inappropriate for resolution at the pleadings
stage. Though Whale Quick Clinic may ultimately prevail on summary judgment, we cannot agree
with the district court that Blanchard’s claim, as pled, was insufficient to survive a motion to
dismiss. Although she only received one text, that text came at a particularly inopportune time. It
exposed her medical information to another person. Blanchard was explicit—she did not want to
receive text messages. Whale Quick Clinic sent her one anyway, indicating either reckless or
intentional conduct.

        Considering the other courts that have recognized the offensive nature of unsolicited text
messages, we find that Blanchard stated a claim upon which relief may be granted. The district
court erred, therefore, in granting Whale Quick Clinic’s motion to dismiss.

                                                       Emma Swan
                                                       Emma Swan, Judge
                                                       United States Court of Appeals
                                                       for the Fourteenth Circuit

Dated: March 25, 2021

                                     Record on Appeal, Page 18
(ORDER LIST: 1000 U. S.)

                         CERTIORARI GRANTED

21-108           Whale Quick Clinic, Inc. v. Mary Margaret
                 Blanchard

                 The petition for a writ of certiorari is granted.
            The parties are directed to address the following
            questions:

     Whether a consumer must suffer actual concrete damages for
     that consumer to have standing to sue under the Telephone
     Consumer Protection Act?

     Whether an unsolicited text message disclosing blood test
     results would be highly offensive to a reasonable person as
     defined by section 652B of the Second Restatement of Torts?

End of Record

                         Record on Appeal, Page 19
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