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Volume XII, Number 341


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December 05, 2022

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HUGE PETITION FOR EN BANC REVIEW SOUGHT: Group of Plaintiff’s Lawyers Trying to Undo TCPA Defendants’ Big Article III Wins in Eleventh Circuit

One of the biggest TCPA developments of the last two years has been the increasing limits on Article III standing to bring TCPA suits in federal court.

The Eleventh Circuit Court of Appeals has been, in particular, clamping down on suits where a Plaintiff suffered little or no harm from a violation.

Most famously, of course, the 11COA held that receipt of a single text message does not afford Article III standing because it does not cause concrete harm.

Less famously, but still importantly, the same court later determined that receipt of a single ringless voicemail does not cause Article III harm either. 

Since then a number of district courts have explored the limits of these decisions–with the most recent line of cases holding that receipt of any voicemail does not cause actionable harm. 

And when you combine this line of cases with the Supreme Court’s recent decision in Ramirez you get a very potent combination of class-action killshots.

Unsurprisingly the Plaintiff’s bar is not terribly happy about all of this. Especially when this line of cases threatens to disrupt their multi-million dollar settlements. And that is just wat happened in the recent case of Drazen v. GoDaddy.

By way of background, the Drazen case settled for a cool ~$20MMish a couple years back. The Plaintiff’s lawyers were set to make about $8MM bucks on the deal. But as I reported at the time, Article III standing was a real issue for the settlement. 

Well an objector ran with the argument that no standing means no settlement–and the Eleventh Circuit agreed! 

So that means the Plaintiff’s lawyers in Drazen now had 8 million reasons to challenge the underlying standing rule from Hanna v. Salcedo.

That is, the Plaintiffs lawyers in Drazen hope to have the full Eleventh Circuit Court of Appeals reconsider en banc the rule that receipt of a single text does not cause harm.

Notably, the Fifth Circuit Court of Appeals has already parted way with the Eleventh, so a re-hearing here is not impossible.

The Class Counsel in the Drazen matter argue the issue is of exceptional importance and “sets the bar for access to the courts too high and separates this Courts from all other circuits to reach the issue.”

“The decision in Salcedo frustrates the ability of Congress to authorize suit not only to protect individuals from harm but also to safeguard public rights from interference.”

Will be very interesting to see if the Eleventh Circuit grants re-hearing.

We’ll keep an eye on this for you.

© 2022 Troutman FirmNational Law Review, Volume XII, Number 234

About this Author

Brittany A. Andres Attorney TCPA Litigation Troutman Firm
Associate Attorney

Brittany Andres is the Baroness of the TCPAWorld and an Associate Attorney at Troutman Firm. Brittany has extensive experience handling high exposure and complex cases from inception to resolution. Brittany attended the University of California, Irvine where she earned a Bachelor of Arts degree in Psychology. Brittany went on to attend Chapman University, Dale E. Fowler School of Law and earned her Juris Doctor. Brittany's practice at Troutman Firm is focused on class action defense litigation related to the Telephone Consumer Protection (TCPA) and compliance.