Does a Single Call to a Cellphone Meet the Concrete Injury Requirement? The Drazen Decision is Forthcoming
The U.S. District Court for the Middle District of Florida recently stayed Simpson v. J.G. Wentworth Co.1 in light of the Eleventh Circuit's pending en banc decision in Drazen v. Pinto.2 Both cases involve similar Telephone Consumer Protection Act (“TCPA”) class action claims and present the question of whether a single phone call to a cell phone constitutes a concrete injury required for Article III standing.
The stay in Simpson serves as a reminder that the forthcoming Drazen decision will be an important one.
In August 2019, Susan Drazen filed a complaint against GoDaddy.com, LLC in the Southern District of Alabama alleging that GoDaddy had violated the TCPA when it allegedly called and texted Drazen solely to market its services and products through a prohibited automatic telephone dialing system.3 The case was consolidated with two related cases, resulting in a purported class action on behalf of similarly situated individuals. The proposed putative class in Drazen includes any individual who received a text message or phone call on his or her cellphone from GoDaddy in the specified period in violation of the TCPA.
While the Drazen case was pending, the Eleventh Circuit held in Salcedo v. Hanna,4 that receipt of a single unwanted text message was not sufficient to meet the concrete injury requirement for standing. On July 27, 2022, relying on Salcedo, the Drazen court determined – in a now vacated opinion – that the district court’s approval of class certification and settlement was improper because the class definition allowed standing for individuals who received a single text message.5 In vacating the district court’s order, the Eleventh Circuit acknowledged that it has yet to determine whether a single cellphone call (as opposed to a single text message, which it had earlier decided in Salcedo) is sufficient to meet the concrete injury requirement for Article III standing and remanded for further analysis.
On March 13, 2023, the Eleventh Circuit granted Drazen’s petition for rehearing en banc.6 In the petition, Drazen requested that the court “reevaluate the Salcedo holding” and “clarify the law regarding the elements necessary to pursue a TCPA claim.”7 It is probable that the Eleventh Circuit will reexamine both Salcedo and Drazen to reach a cohesive decision regarding whether receipt of a single text message and/or a single cell phone is sufficient to meet the concrete injury requirement for Article III standing under the TCPA.
Drazen is tentatively set for argument in June 2023.
1 No. 8:23-CV-152-KKM-AEP, 2023 WL 3029820 (M.D. Fla. Apr. 17, 2023).
2 61 F.4th 1297, 1298 (11th Cir. 2023).
3 2019 WL 8014756 (S.D.Ala.).
4 936 F.3d 1162 (11th Cir. 2019).
5 Drazen v. Pinto, 41 F.4th 1354 (11th Cir. 2022), reh'g en banc granted, opinion vacated, 61 F.4th 1297 (11th Cir. 2023).
6 61 F.4th 1297, 1298 (11th Cir. 2023).
7 Drazen, No. 21-10199 (Doc. 83) at 1–2.