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.