The Eleventh U.S. Circuit Court of Appeals has agreed to an en banc review of a notable decision issued last July with respect to Article III standing for purposes of a Telephone Consumer Protection Act (TCPA) lawsuit. The review could have major implications, including possible reconsideration of the Eleventh Circuit’s prior ruling in Salcedo v. Hanna that a single text message is insufficient to establish Article III standing.

Susan Drazen filed a TCPA class action against GoDaddy.com in Alabama, alleging that the company used an automated telephone dialing system (ATDS) to send unwanted calls and text messages promoting its products. Her case was consolidated with two similar suits filed in Arizona.

The parties reached a $35 million settlement agreement that included $35 in cash or a $150 voucher for GoDaddy for the roughly 1.26 million class members.

While the district court expressed concern that the class was defined to include recipients of a single call or text message—which the Eleventh Circuit ruled is insufficient to establish standing in Salcedo—it noted that a circuit split exists on the issue and certified the class, which included plaintiffs outside the Eleventh Circuit.

Last July, a panel of the Eleventh Circuit reversed class certification, emphasizing that “every class member must have Article III standing in order to recover individual damages,” and that a court “cannot … check Article III requirements at the door of the class action. Any class definition that includes members who would never have standing under our precedent is a class definition that cannot stand.”

Drazen petitioned the court for rehearing.

In March, the full Eleventh Circuit agreed to consider the case, vacating the panel decision.

“[A] member of this court in active service having requested a poll on whether this appeal should be reheard by the court sitting en banc, and a majority of the judges in active service on this court having voted in favor of granting rehearing en banc, it is ordered that this appeal will be reheard en banc,” the court wrote.

To read the order in Drazen v. Pinto, click here.

To read the panel decision in Drazen v. GoDaddy.com, click here.

Why it matter

The en banc review of the Drazen case could have a significant impact on TCPA litigation. If the Eleventh Circuit focuses simply on the question of whether Salcedo applies in class action cases that include class members from other federal circuits, the ruling could affect the number of TCPA class action filings in the Eleventh Circuit. If the judges take a broader look at the underlying standing issue in the case—including a review of Salcedo itself—the opinion could have an even larger impact.