Eleventh Circuit Applies TransUnion and Vacates Class Certification

The Eleventh Circuit recently decertified a TCPA settlement class because the class definition included members who could never have Article III standing under Eleventh Circuit precedent.  Drazen v. Pinto, — F.4th –, No. 21-10199, 2022 WL 2963470, at *4-7 (11th Cir. July 27, 2022).  The court applied the U.S. Supreme Court’s holding in TransUnion LLC v. Ramirez and ruled that all members of a Rule 23(e) settlement class must have Article III standing to recover damages.  Id. at *5-6 (citing TransUnion, 141 S. Ct. 2190, 2208 (2021)).  The Drazen court expressly rejected the proposition that plaintiffs with no standing in the Eleventh Circuit could be part of a nationwide class, even if they may have standing in another circuit.  Id.  As of the date of publication, Drazen is the first and only decision from a federal appellate court that analyzes TCPA claims under the TransUnion rubric.  Although the impact of Drazen outside of the Eleventh Circuit remains unclear, the case demonstrates how courts may analyze Article III standing issues in TCPA class actions going forward.

As readers of this blog are aware, the U.S. Supreme Court issued its decision in TransUnion, LLC v. Ramirez last summer.  The decision reaffirmed that plaintiffs must demonstrate a “concrete harm” to establish Article III standing to sue in federal court.  TransUnion, 141 S. Ct. at 2200.  Moreover, in footnote 4 of the TransUnion decision, the Court explicitly stated that it was not addressing the “distinct question whether every class member must demonstrate standing before a court certifies a class.”  Id. at 2208 n.4.

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Seventh Circuit Disagrees with Ninth Circuit and Joins the Third and Eleventh Circuit in Adopting a Narrow Interpretation of ATDS

In a decision released on February 19 that relied principally on rules of grammar, the Seventh Circuit held that to be an ATDS under the TCPA, a device must be capable of storing or producing telephone numbers using a random or sequential number generator, not merely capable of storing numbers. Gadelhak v. AT&T Services, Inc., No. 19-1738 (7th Cir. Feb. 19, 2020). As such, it affirmed the District Court’s decision (albeit based on a different interpretation of the TCPA) that granted summary judgment in favor of AT&T where AT&T’s customer management tool “dials numbers only from a customer database.” In so holding, the Seventh Circuit joined the Third Circuit’s and the Eleventh Circuit’s (which we blogged about here) narrow interpretation of ATDS and widened the split with the Ninth Circuit’s expansive interpretation. Compare Glasser v. Hilton Grand Vacations Co., 2020 WL 415811 (11th Cir. Jan. 27, 2020) & Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018) with Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018).

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