In an unusual showing of unanimity, the full Eleventh Circuit held that a single unwanted text is enough to confer Article III standing to assert a claim under the Telephone Consumer Protection Act. Drazen v. Pinto, 2023 WL 4699939 (July 24, 2023).
The original panel opinion, vacated by the grant of rehearing en banc, arose from a proposed class settlement of a putative nationwide class action under the TCPA against GoDaddy.com, LLC, based on allegations of unwanted texts and cell phone calls. The parties reached a class settlement and requested the district court’s approval. The district court asked for briefing on the application of Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which held that receipt of a single text in violation of the TCPA was not an injury sufficiently concrete to confer Article III standing. The district court concluded that only the named representatives must have standing, and that only 7% of the class members may have only received a single text message. Still, that amounted to 91,000 class members with no standing. The court approved a class settlement. Then an objector appeared and argued, among other things, that the settlement involved GoDaddy vouchers which, he contended, were coupons and thus fell under 28 U.S.C § 1712(e), part of the Class Action Fairness Act (CAFA). Use of coupons generally restricts the amount of attorneys’ fees that may be awarded in a proposed settlement. The district court ultimately disagreed that the settlement was a coupon settlement, but did reduce the attorneys’ fees award to $7 million. The objector appealed.
On appeal, the panel vacated approval of the settlement and remanded to give the parties an opportunity to revise the class definition so as not to encompass class members with no standing. The court began with the principle that every class member must have Article III standing to recover individual damages. The court went on to hold that “when a class seeks certification for the sole purpose of a damages settlement under Rule 23(e), the class definition must be limited to those individuals who have Article III standing.” The panel did not reach the unbriefed question of the threshold for standing under Article III, leaving that to the district court on remand.
On rehearing en banc, Judge Robin Rosenbaum’s opinion for the unanimous court began with what it saw as the question at the core of the appeal, whether the plaintiffs who received a single unwanted telemarketing text suffered a concrete injury. The answer turned on whether the harm from receiving such a text shared a close relationship with a traditional harm recognized as providing the basis for a lawsuit in an American court. The relationship must be in kind, not degree. The court noted that the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits declined to consider the degree of offensiveness required to state a claim for intrusion upon seclusion at common law. Instead, these courts have held that unwanted texts and phone calls resemble the kind of harm associated with intrusion upon seclusion. This was a sufficient common-law comparator to confer Art. III standing. Like the panel, the court declined to reach the CAFA coupon issues and remanded the case for consideration of those issues in the district court.