Eleventh Circuit to Reconsider its Outlier View on TCPA Standing

Since its 2019 decision in Salcedo v. Hanna, which held that a Telephone Consumer Protection Act plaintiff who received only a single unwanted text message lacked standing to sue because he had not suffered an actual injury, the U.S. Court of Appeals for the Eleventh Circuit has been out of step with the other federal courts, which have widely recognized that even a single unwanted robocall or robotext is a real injury. Yesterday, in a case called Drazen v. Pinto, the Eleventh Circuit granted rehearing by the full court to reconsider Salcedo’s holding. The case presents an opportunity for the court to bring its views on standing in TCPA cases into line with those of other circuits, as well as to conform them with its own precedents and those of the Supreme Court.

Drazen arose from a TCPA class-action settlement in which the settlement class included members who had received just one text or call from the defendant, as well as members who had gotten multiple calls and/or texts. In the process of approving the settlement, the district court considered whether the plaintiffs had standing, and concluded that the inclusion in the class of members who lacked standing under Salcedo didn’t matter as long as at least one of the class representatives had standing. Later, a class member objected to the attorney fees included in the settlement, and appealed when the district court rejected his objection and approved the settlement.

A panel of the Eleventh Circuit vacated the settlement approval on the ground that the inclusion in the class of members who, under Salcedo, had not been injured violated constitutional standing requirements. The court took as a given that class members who had gotten only one text lacked standing under Salcedo, The panel’s opinion spent most of its time explaining its conclusion that a class action settlement can provide relief only to class members who have suffered an injury that would give them standing to sue on their own behalf.

Although the question whether a settlement that includes uninjured class members violates constitutional standing principles might itself have merited reconsideration, the class’s attorneys made a strategic choice to focus their rehearing petition squarely on Salcedo. The petition explained that Salcedo conflicts with decisions from every other circuit that has addressed the issue and is in tension with other decisions of the Eleventh Circuit itself.

Class counsel’s choice paid off: The court granted rehearing, and now has an opportunity to correct the mistake it made in Salcedo.

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