As discussed here, on July 27, 2022, the Eleventh Circuit Court of Appeals sua sponte vacated the district court’s approval of a $35 million class-action settlement in Drazen and, LLC (Godaddy) v. Pinto. Although the parties had not briefed the issue before the Eleventh Circuit, the court ruled that the class definition did not meet Article III’s standing requirements and remanded the case to the district court to give the parties an opportunity to revise the definition. The class petitioned the appellate court for rehearing. On March 13, 2023, the court issued an order granting the petition for a rehearing en banc.

As background, the plaintiff filed a class action complaint in the Southern District of Alabama claiming that Godaddy violated the Telephone Consumer Protection Act (TCPA) by using an automatic telephone dialing system to place marketing calls and texts without the consent of the plaintiff and other putative class members. The class was initially defined as “All persons within the United States who received a call or text message to his or her cellular telephone from Defendant from November 4, 2014 through December 31, 2016.” The parties eventually submitted a proposed class settlement for approval.

Without prompting from the parties, the district court asked the parties whether the Eleventh Circuit’s 2019 ruling in Salcedo v. Hanna precluded approval of the class. The Salcedo court held that receipt of a single unwanted text message was not a sufficiently concrete injury to give rise to Article III standing. The parties narrowed the class definition slightly to reference the software used by Godaddy’s call campaign, but did not require that putative class members have received more than one text message.

On appeal for an attorneys’ fee calculation issue, a three-judge panel of the Eleventh Circuit re-raised the issue of subject matter jurisdiction sua sponte. Relying on the U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez, the Eleventh Circuit concluded that to recover individual damages, all plaintiffs within the class definition — named or unnamed — must have standing. Since the proposed class included individuals who had only received one text message and lacked standing, the Eleventh Circuit vacated and remanded. The Court of Appeals will now review that issue en banc.

Troutman Pepper will continue to monitor this litigation and provide updates as they become available.