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Petition for En Banc Review Filed in the Eleventh Circuit Following Pivotal TCPA Standing Suit

As we previously reported, the Eleventh Circuit recently held that receiving a single, unsolicited text message does not constitute the harm necessary to achieve Article III standing in a Telephone Consumer Protection Act (“TCPA”) suit. Salcedo v. Hanna, No. 17-14077, 2019 WL 4050424 (11th Cir. 2019). In so holding, the Salcedo v. Hanna decision gave new life to standing arguments in TCPA cases, and created a circuit split along the way. The implications of the decision could drastically alter the viability of individual and TCPA class actions in the text messaging context.

However, this week, the Plaintiff filed a petition in the Eleventh Circuit to rehear his case en banc. In the petition, Plaintiff asks the Eleventh Circuit to reconsider the following issue: “Whether a person who receives a text message sent to a cell phone in violation of the Telephone Consumer Protection Act (TCPA) prohibition on unconsented-to, auto-dialer calls to cell phones, 47 U.S.C. § 227(b)(1)(A)(iii), suffers concrete injuries providing standing to sue under the TCPA’s right of action for the remedies provided by the Act.” In support of his petition, Plaintiff argues that "the panel's decision departs from other circuits' rulings by centering on the panel's assessment that in the TCPA, Congress was principally concerned about invasions of privacy in the home. The other circuits addressing cell-robocall violations understood that Congress' privacy protective purpose extends more broadly."

It remains to be seen whether the Eleventh Circuit will agree to rehear the case en banc and, if so, whether it will disagree with the original panel.  We will continue to keep a close eye on the fate of Salcedo v. Hanna.

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About this Author

Susan Nikdel, Womble, litigation attorney

Susan represents clients in commercial and financial services litigation, particularly Telephone Consumer Protection Act (TCPA) cases. She is part of a team that has handled more than 600 TCPA cases, including more than 50 national class actions.

Prior to beginning her legal career, Susan served as a Judicial Extern for the Honorable Theodor C. Albert in the U.S. Bankruptcy Court, Central District of California.  She is a Certified Mediator.

Susan is fluent in Farsi/Persian and conversational in Spanish.