Drazen v. Pinto (11th Cir. 2023) (en banc)

The short version

The full Eleventh Circuit ruled that a person who receives an unwanted, illegal telemarketing text message has suffered a concrete injury and so has standing to sue under the Telephone Consumer Protection Act (TCPA). The court so ruled for class members who had received only a single text.

About the case name

The case began as a class action against GoDaddy.com, LLC and is often called Drazen v. GoDaddy. On appeal, however, it is captioned Drazen v. Pinto because Juan Enrique Pinto, a class member who objected to the class settlement, was the appellant. GoDaddy was a defendant-appellee.

Background

Susan Drazen and other plaintiffs alleged that GoDaddy called and texted cell phones using an autodialer, in violation of 47 U.S.C. § 227(b)(1)(A). Their cases were consolidated, and the parties reached a nationwide class settlement. GoDaddy estimated the class at about 1.26 million people, about 7% of whom had received only one text message.

At the time, Eleventh Circuit precedent, Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), held that receiving a single text message was not a concrete injury. Relying on Salcedo, a three-judge panel in 2022 held that the class definition did not meet Article III standing requirements because it included people who had received only one text. The court then agreed to rehear the case en banc.

What the court decided

Judge Rosenbaum wrote the opinion for a unanimous en banc court. Judges Jordan and Newsom filed a concurring opinion, and Judge Branch filed a separate concurrence.

The court applied the Supreme Court's test for intangible harms: whether the harm Congress identified has a "close relationship" to a harm traditionally recognized as a basis for a lawsuit. It compared an unwanted text to the common-law tort of intrusion upon seclusion. Both, the court said, represent "an intrusion into peace and quiet in a realm that is private and personal."

The court acknowledged that one unwanted text may not be offensive enough to satisfy every element of the common-law tort. But it explained that the difference is one of degree, not kind, and that Congress may recognize a lower degree of harm as enough to sue. Its holding: "the receipt of an unwanted text message causes a concrete injury." The court sent the case back to the original panel to decide the remaining class settlement issues.

What happened next

On May 13, 2024, the panel vacated the district court's approval of the settlement and its attorney's fee award. It found, among other things, that the district court did not apply the 2018 amendments to Federal Rule of Civil Procedure 23(e)(2) and erred in deciding that the settlement was not a coupon settlement under the Class Action Fairness Act.

Why it matters

• Standing for single texts in the Eleventh Circuit. In Alabama, Florida and Georgia, the federal courts of the Eleventh Circuit, a plaintiff who received one unwanted telemarketing text can establish a concrete injury.
• Consistency with other circuits. The court noted that seven other federal circuits had held that receiving one or two unwanted texts or calls resembles the harm associated with intrusion upon seclusion, citing among others the Seventh Circuit's Gadelhak v. AT&T Services, Inc. (2020) and the Third Circuit's Susinno v. Work Out World Inc. (2017).
• Standing is separate from the merits. Having standing means a plaintiff can bring the claim. It does not mean the text actually violated the TCPA.