An objector challenged the attorneys’ fees awarded in conjunction with a class settlement under the TCPA against GoDaddy as excessive under CAFA on the basis that the settlement was a “coupon” settlement.

The Court of Appeal, however, before reaching that issue, vacated the settlement: “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 District Court had certified a settlement class of:  All persons within the United States to whom, from November 4, 2014 through December 31, 2016, Defendant placed a voice or text message call to their cellular telephone pursuant to an outbound campaign facilitated by the web-based software application used by 3Seventy, Inc., or the software programs and platforms that comprise the Cisco Unified Communications Manager.

“So, the universe of plaintiffs under this definition includes any individual who received a text message or phone call on their cellphone from GoDaddy in the specified period. Under Salcedo, we have said that a single unwanted text message is not sufficient to meet the concrete injury requirement for standing. So, the class definition cannot stand to the extent that it allows standing for individuals who received a single text message from GoDaddy. Otherwise, individuals without standing would be receiving what is effectively damages in violation of TransUnion. The more difficult question is whether individuals who have received a single cellphone call also have standing. Without the benefit of TransUnion, we held that receipt of more than one unwanted telemarketing call was sufficient to meet the concrete injury requirement for Article III standing. But we did not decide whether a single phone call to a cellphone was a concrete injury for Article III standing purposes. Because we have not received briefing on whether a single cellphone call is sufficient to meet the concrete injury requirement for Article III standing and because TransUnion has clarified that courts must look to history to find a common-law analogue for statutory harms, we think the best course is to vacate the class certification and settlement and remand in order to give the parties an opportunity to redefine the class with the benefit of TransUnion and its common-law analogue analysis.”

 

Drazen v. Pinto, 41 F.4th 1354 (11th Cir. 2022).