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 Godaddy.com, 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.

Photo of Brooke Conkle Brooke Conkle

Brooke Conkle offers consumer-facing companies compliance counseling and litigation services to help them address federal and state consumer protection laws. Recognizing the challenges facing financial services companies, she provides in-depth analysis of complex issues related to consumer protection and compliance.

Photo of David N. Anthony David N. Anthony

David Anthony handles litigation against consumer financial services businesses and other highly regulated companies across the United States. He is a strategic thinker who balances his extensive litigation experience with practical business advice to solve companies’ hardest problems.

Photo of Chad R. Fuller Chad R. Fuller

Chad is a partner in the firm’s Consumer Financial Services practice with a primary focus in financial services litigation. He is an accomplished trial attorney who has served as lead counsel in state and federal courts across the country in which he represents…

Chad is a partner in the firm’s Consumer Financial Services practice with a primary focus in financial services litigation. He is an accomplished trial attorney who has served as lead counsel in state and federal courts across the country in which he represents clients in consumer class actions and general business litigation. Chad has particular speciality with the Telephone Consumer Protection Act, and has also broadened his practice into more traditional areas of health care litigation.

Photo of Sarah Siu Sarah Siu

Sarah Siu leverages her clerkship and litigation experience to help consumer-facing companies navigate the complex world of consumer protection litigation.

Photo of Virginia Bell Flynn Virginia Bell Flynn

Virginia is a partner in the firm’s Consumer Financial Services practice and specifically within the Financial Services Litigation practice. She represents clients in federal and state court, both at the trial and appellate level in the areas of complex litigation and business disputes…

Virginia is a partner in the firm’s Consumer Financial Services practice and specifically within the Financial Services Litigation practice. She represents clients in federal and state court, both at the trial and appellate level in the areas of complex litigation and business disputes, health care litigation, including ERISA and out-of-network issues, and consumer litigation in over 21 states nationwide. As a result of new legal developments, she increasingly counsels clients to ensure they comply with the myriad of growing laws in the consumer law with a particular emphasis on the intersection of TCPA and HIPAA.

Photo of David M. Gettings David M. Gettings

Dave is a partner of the firm who focuses on defending clients in consumer class actions and complex commercial litigation nationwide, particularly cases involving a variety of federal and state laws and regulations, including the Fair Credit Reporting Act (FCRA), the Telephone Consumer

Dave is a partner of the firm who focuses on defending clients in consumer class actions and complex commercial litigation nationwide, particularly cases involving a variety of federal and state laws and regulations, including the Fair Credit Reporting Act (FCRA), the Telephone Consumer Protection Act (TCPA) and associated FCC regulations, the Fair Debt Collection Practices Act, the Truth in Lending Act, the Electronic Fund Transfer Act, and many similar state consumer protection statutes.

Photo of Mary C. Zinsner Mary C. Zinsner

Mary focuses her practice on litigation and strategy in lender liability, check and bank operation, class action, consumer finance, fiduciary matters, and creditor’s rights disputes. While Mary litigates extensively in the federal and state trial and appellate courts in Virginia, Maryland, and the…

Mary focuses her practice on litigation and strategy in lender liability, check and bank operation, class action, consumer finance, fiduciary matters, and creditor’s rights disputes. While Mary litigates extensively in the federal and state trial and appellate courts in Virginia, Maryland, and the District of Columbia, and the U.S. Court of Appeals for the Fourth Circuit, she represents banking clients in cases of all sizes nationwide.