This blog previously covered the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, which held that all class members must have Article III standing in order to receive individual damages in a class settlement.  41 F.4th 1354 (11th Cir. 2022).  Because the law in the Eleventh Circuit at the time held that a single unwanted text message was insufficient to establish Article III standing, the Eleventh Circuit vacated the conditional class certification and approval of a settlement for a Telephone Consumer Protection Act class that contained individuals who received only unwanted text messages, not phone calls.  Id.; see also Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019) (singe unwanted text message is not a concrete injury under Article III).  The Drazen panel also held that the standing determination is decided under Eleventh Circuit law, even for class members who do not reside within the Eleventh Circuit’s geographic boundaries and would have standing under their own circuit precedent.  41 F.4th at 1360–61.

The full Eleventh Circuit subsequently decided to rehear Drazen en banc, and it vacated the entire panel decision.  The full court has now held that Salcedo was wrongly decided, and that the harm associated with a single unwanted text message is a concrete injury that satisfies Article III.  Drazen v. Pinto, 2023 WL 4699939, at *7 (11th Cir. July 24, 2023) (en banc) (“Drazen II”).  In doing so, the en banc court agreed with plaintiffs that a single unwanted text message is an invasion of privacy that bares a “close relationship with the harm associated with [the common law tort] intrusion upon seclusion,” satisfying the Supreme Court’s test to determine when intangible harms are sufficiently concrete under Article III.  Id. at *5–6 (citing TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203–04 (2021); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016)).  The relationship between the harm alleged and common law analogues need not be “identical,” the en banc court explained, only “similar to the old harm.”  Drazen II, 2023 WL 4699939, at *5.  Accordingly, the case was remanded back to the Drazen panel to consider the issues originally raised on appeal but not decided regarding the initial settlement.

Drazen II’s determination that text message class members had standing moots the original panel’s (vacated) holding that all class members must have Article III standing to receive damages in a class settlement and that the standing determination is decided under Eleventh Circuit law even for class members who reside in other circuits with different precedent.  Still, and helpfully for Defendants, the en banc decision said nothing to suggest that the panel’s conclusion that all class members must have Article III standing in order to receive individual damages in a class settlement was wrong. Those issues are likely to come up again, and time (and this blog) will tell what the Eleventh Circuit does when they do.

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Photo of Jeffrey Huberman Jeffrey Huberman

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among…

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among others, using his substantial experience in all stages of litigation, including:

  • dispositive motions;
  • fact and expert discovery;
  • class certification;
  • summary judgment; and
  • trial

Jeffrey has first-chaired fact and expert witness depositions and has drafted dispositive motions in both federal and state court for clients. In addition, Jeffrey maintains an active pro bono practice focused on veterans’ rights and criminal justice.

Prior to attending law school, Jeffrey worked for the Massachusetts House of Representatives.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.