GoDaddy Tries To Sway Full 11th Circ. On TCPA Standing

By Jess Krochtengel 

Law360 (May 16, 2023, 7:36 PM EDT) -- GoDaddy.com is trying to persuade the Eleventh Circuit to keep its relatively high bar for standing in Telephone Consumer Protection Act class actions, while a class that got unwanted text messages from the company says the court should align with other circuits.

The full Eleventh Circuit is slated to hear argument on June 13 on the question of whether receiving a single unsolicited text message constitutes the kind of concrete injury that would confer standing under the TCPA. A now-vacated panel decision had wiped out an up to $35 million settlement between GoDaddy and a group of consumers based on the panel's concerns about whether all class members had standing to sue.

But the en banc circuit is now considering whether its 2019 precedent in Salcedo v. Hanna correctly held that standing can't be established for a TCPA claim through the receipt of a single unsolicited text message. The question gives the court a chance to consider how the U.S. Supreme Court's 2021 decision in TransUnion v. Ramirez  — which held plaintiffs must establish they were concretely harmed by a statutory violation to have standing — may have shifted the landscape since the Salcedo decision.

GoDaddy wants the court to affirm the Salcedo precedent, staking out the position in a brief Monday that the "mere annoyance and inconvenience" of getting one unwanted text message does not constitute the kind of harm that confers standing in federal court.

"There is no historical common-law tort analogue for the harm allegedly associated with a single text message, meaning there is no concrete injury associated with a single text message, and no standing," it said.

The class, led by lead plaintiff Susan Drazen, argued in a brief Monday that every circuit except for the Eleventh recognizes standing for individuals who get a single text message, call or fax in violation of the TCPA. Congress spelled out that harm from unwanted messages supports a claim for damages, the class argued.

It says the Salcedo decision is at odds with TransUnion and that high court precedent does not require a statutory violation to exactly duplicate a common-law harm to be treated as a concrete injury.

"The Salcedo ruling requires courts to reject any congressionally-recognized harm unless it matches a common-law cause of action, both in kind and in degree," the class said in its brief. "That rule sets the bar too high for access to the courts."

Amicus briefs that poured in on Monday highlight the importance of the case to class action litigators, particularly industries that face a lot of litigation under the TCPA.

Retail Litigation Center Inc. and the Florida Retail Federation support GoDaddy's position that getting a single unwanted text message is not analogous to common-law harm, as does ACA International, a debt collection trade association. ACA emphasized to the court that the TCPA is a "poster child for lawsuit abuse" and that this case will directly impact how much TCPA litigation its members face.

And Florida Justice Reform Institute Inc. said in its brief that if Salcedo were overturned, "it would be ruinous to the Florida businesses that FJRI exists to protect from abusive and predatory lawsuits."

Public Citizen's amicus brief supports the class, saying Salcedo's standing analysis required too close a relationship between the harm from a statutory violation and the kinds of injuries addressable in common-law torts.

A man who objected to the settlement on the grounds it awarded excessive attorney fees, Juan Enrique Pinto, said in a brief in April that receiving an unwanted text message or phone call is a concrete injury that establishes standing under the TCPA. He urged the Eleventh Circuit to recognize standing for all the GoDaddy class members.

Pinto is separately urging the court to reverse the lower court ruling based on what he alleges is a violation of the Class Action Fairness Act's restrictions on coupon settlements. Still, that issue is not teed up for the en banc court.

Drazen, a Florida resident, sued GoDaddy in August 2019 in the Southern District of Alabama for alleged violations of the TCPA, accusing the company of using an automatic telephone dialing system to send unwanted calls and text messages promoting its products. A $35 million settlement was preliminarily approved in 2020.

The district court had signed off on the class, reasoning that class members who lived outside the Eleventh Circuit would have viable claims in their respective circuits.

Counsel for the parties did not immediately respond to requests for comment Tuesday.

The plaintiffs are represented by Earl Price Underwood Jr. of Underwood & Reimer PC.

GoDaddy is represented by Matthew B. Criscuolo and Jeffrey M. Monhait of Cozen O'Connor.

Pinto is represented by Robert W. Clore of the Bandas Law Firm PC.

The case is Drazen et al. v. GoDaddy.com LLC, case number 21-10199, in the U.S. Court of Appeals for the Eleventh Circuit.

--Additional reporting by David Minsky. Editing by Jay Jackson Jr.

https://www.law360.com/articles/1677930/godaddy-tries-to-sway-full-11th-circ-on-tcpa-standing