This case is a class action alleging claims under the Telephone Consumer Protection Act (TCPA) against GoDaddy.com for making autodialed calls and texts to mobile phones without the recipients’ consent. The parties proposed a settlement and, in considering objections to the settlement, the district court addressed whether the plaintiff class had Article III standing. Although under the Eleventh Circuit’s decision in Salcedo v. Hanna plaintiffs who allege receipt of only one text message in violation of the TCPA lack standing, the district court approved the settlement on the ground that only the named plaintiffs needed to have standing, and that the settlement could include class members who lacked standing under Eleventh Circuit precedent.
The objector appealed the merits of the settlement approval but did not argue that class members lacked standing. The court of appeals, however, held that the settlement had to be vacated because it included class members who lacked standing under Salcedo; the court rejected the view that a class-action settlement could provide recoveries for class members who could not be awarded damages by a court because they lacked standing. The plaintiff petitioned for rehearing en banc, arguing that Salcedo should be overruled and, in the alternative, that class members who lack standing may be included in a class action settlement. The court granted rehearing en banc.
Public Citizen filed an amicus brief supporting the plaintiffs at the en banc stage. The brief argued that Salcedo should be overruled, because it wrongly made standing turn on how much a plaintiff is injured rather than whether she is injured. In addition, Salcedo wrongly focused on whether an injury recognized by a congressionally conferred right of action would be actionable at common law, rather than whether the injury is related to an injury cognizable at common law, and wrongly concluded that Congress never determined that unconsented-to texts to mobile phones are harmful.
In a decision issued in July 2023, the Eleventh Circuit issued an opinion agreeing with our arguments. The court held that whether the plaintiffs who received a single unwanted, illegal telemarketing text message suffered a concrete injury turns on whether the harm from receiving such a text message shares a close relationship with a traditional harm, and that, here the harm shares a close relationship with the harm that underlies a common-law claim of intrusion upon seclusion. The court also explained that whether the harms are similar is a question of kind, not of degree. The court therefore concluded that a plaintiff who receives an unwanted, illegal text message suffers a concrete injury.