On June 13, the U.S. Court of Appeals for the Eleventh Circuit heard oral arguments in Drazen v. Pinto, No. 21-10199 (11th Cir.), a case that could represent a substantial departure from circuit precedent regarding the constitutional standing of claimants under the Telephone Consumer Protection Act (TCPA). The Drazen court, sitting en banc, will reconsider a three-judge panel’s decision to vacate the U.S. District Court for the Southern District of Alabama’s certification and final approval of a TCPA settlement class. The panel vacated the district court’s decision on the basis that certain class members received a single unsolicited text message and, thus, lacked a concrete injury sufficient to confer Article III standing. See 41 F. 4th 1354 (11th Cir. 2022). As the lone federal circuit to have affirmatively held that the receipt of a single text message is insufficient to establish Article III standing, the Eleventh Circuit’s decision in this appeal has significant implications for future TCPA class action litigation.

The District Court’s Decision

In the underlying action, Drazen filed a putative class action complaint against GoDaddy.com, LLC, alleging that GoDaddy violated the TCPA by sending text messages and placing phone calls to the plaintiff’s and the class members’ cellular phones via an automatic telephone dialing system without prior express consent. See Drazen v. GoDaddy.com, No. 1:19-00563, 2020 WL 8254868 (S.D. Ala. Dec. 23, 2020). After the case was consolidated with two related actions, the parties reached a settlement and the plaintiffs moved for preliminary approval. Because the consolidation of the cases resulted in the addition of new named plaintiffs, and one of those newly added named plaintiffs received only a single text message, the district court ordered briefing on the applicability of Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019). In Salcedo, the Eleventh Circuit held that the recipient of a single text message had not suffered an injury in fact and lacked standing to sue under the TCPA.

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