Eleventh Circuit Grants En Banc Rehearing to Determine if Salcedo Should be Overturned

For years, the Court of Appeals for the Eleventh Circuit has been an outlier among its brethren, holding that an individual who received a single — unwanted — text message lacked standing to sue under the Telephone Consumer Protection Act because he did not suffer a concrete injury. That ruling is now going under the microscope, after the Eleventh Circuit granted an en banc rehearing in Drazen v. Pinto.

Salcedo v. Hanna has been the law of the land in the Eleventh Circuit for more than three years. In its ruling, the Eleventh Circuit wrote, “Salcedo’s allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real but intangible harms. The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.”

In Drazen v. Pinto, the Eleventh Circuit vacated a lower court’s certification of a class and approve a settlement because the class included individuals who lacked standing — those who, you guessed it, who only received one text message. While the District Court judge thought it was fine to include individuals who received only one text message in the settlement because at least one of the class representatives had received more than one text message and thus had standing, the Eleventh Circuit, applying Salcedo, ruled that anyone who lacked standing should not be included in the class.

Interestingly enough, an en banc rehearing was sought in Salcedo, but the court denied the request.

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