On Thursday, the litigants in a class action against GoDaddy.com LLC who alleged that it violated the Telephone Consumer Protection Act (TCPA) by sending unwanted pre-recorded voice calls and text messages to their cell phones, petitioned the Eleventh Circuit Court of Appeals to reconsider en banc whether class members have standing under their proposed settlement class definition.
The case dates to 2019 when a consumer filed the TCPA class action. After several years of litigation, the parties settled and a Southern District of Alabama court certified the class and approved the $35 million settlement. Then, an objector filed an appeal with the Eleventh Circuit.
According to this week’s petition, the appellate tribunal ruled on the issue of standing, which was neither raised on appeal nor brief or argued. The panel said that the class definition improperly included members that had received only one text and therefore did not have standing, based on the Eleventh Circuit’s Salcedo v. Hanna, which found that a single robotext is insufficient to confer standing, and the Supreme Court’s decision in TransUnion LLC v. Ramirez.
Ultimately, the panel vacated class certification and the settlement and remanded with instructions for the parties “to redefine the class with the benefit of TransUnion and its common-law analogue analysis.”
The plaintiff-appellees now contest that ruling on several grounds. First, they argue that Salcedo was wrongly decided because it flies in the face of the TCPA, which bars using an automatic telephone dialing system to make any call or text without consent, and explicitly provides at least a $500 penalty per violation.
The petition also says the decision is in conflict with all other circuits on this point. Too, it clashes with Eleventh Circuit precedent, principally a 2020 case that found standing where just one unwanted call was sufficient to meet the concrete injury requirement.
Lastly, the petition says that the decision erodes firmly rooted representational standing doctrine. According to the filing, representational standing has been honored in cases such where through the TCPA, the federal legislature delegated an express right of action to aggrieved parties.The plaintiff-appellees are represented by Underwood & Riemer P.C., the objector by Bandas Law Firm P.C., and GoDaddy by Cozen O’Connor.