The case addresses the question of whether an individual has Article III standing to recover damages based on receipt of a single unwanted call or text message. A negative outcome could increase weaponization of the TCPA, so ACA is speaking up for its members.
05/17/2023 4:15 P.M.
3.5 minute read
On May 15, ACA International filed an amicus brief supporting GoDaddy.com, LLC in an 11th Circuit case on issues of Article III standing under the Telephone Consumer Protection Act.
ACA filed the brief in Drazen v. Pinto, 41 F.4th 1354 (11th Cir. 2022), because the outcome of the case will directly impact the volume and nature of TCPA litigation faced by ACA’s members. ACA was one of four groups that submitted amicus briefs in this case.
The Case
In Drazen, a consumer alleged GoDaddy.com, LLC violated the TCPA by using a prohibited automatic dialing system to place phone calls and send text messages to cellular telephone numbers without the recipients’ consent.
The consumer’s case was consolidated with two other cases, and the three plaintiffs sought to bring a class action on behalf of similarly situated individuals.
The consumers reached a $35 million settlement agreement, proposing that the class be defined to include people who received a single call or text message to their cellular telephone from the defendant.
The court invalidated the settlement, guided by a 2019 case, Salcedo v. Hanna, in which the 11th Circuit concluded that receipt of a single, unsolicited text message did not constitute “concrete injury” sufficient to establish Article III standing.
The court instructed the parties on remand to redefine the class with the benefit of TransUnion v. Ramirez and Salcedo.
The plaintiffs argued that Congress provided a right of action for the purpose of protecting against the nuisance that telemarketing calls impose, and that Salcedo was incorrectly decided and must be overruled.
The 11th U.S. Circuit Court of Appeals agreed to an en banc review of the decision.
ACA’s Take
Even with the guidance on standing provided by the U.S. Supreme Court in TransUnion, parties continue to litigate the issue of standing heavily and with varying outcomes. The outcome of Drazen v. GoDaddy.com, LLC is of particular importance to the accounts receivable management industry because it is not clear if any party to the case would defend the panel’s view that receipt of a single text message is not an Article III injury.
“Many of ACA members communicate with their customers by text message,” ACA writes in the brief. “Consumers value and affirmatively seek out those communications. But ACA members have increasingly found themselves the targets of abusive TCPA litigation, much of it brought by professional plaintiffs and counsel who have advocated for and exploited an expansive interpretation of the TCPA.”
ACA’s amicus brief urges the 11th Circuit to reaffirm the decision in Salcedo v. Hanna and further clarify—in light of the Supreme Court’s decision in TransUnion v. Ramirez, which ACA supported via an amicus brief—that lower courts considering class certification must ensure that all class representatives and class members have standing to be included in the suit.
Recall that in TransUnion, the Supreme Court cut a class of 8,185 putative class members down to a class of 1,853 class members—reducing the class by more than 75%—because the majority of class members had suffered no concrete injury.
In addition, ACA’s amicus brief asks the 11th Circuit to elaborate on its admonition in Salcedo that Article III standing requires a qualitative analysis, i.e., scrutiny of how concrete, actual, or real an alleged harm is, rather than a quantitative analysis. Or, as the Salcedo court wrote: “Article III standing is not a ‘You must be this tall to ride’ measuring stick.’”
If this qualitative inquiry means that TCPA litigation necessitates individual inquiries on the question of Article III standing such that putative plaintiffs’ and class members’ claims must be litigated separately rather than via class action, then perhaps TCPA text-message litigation simply is not susceptible to class litigation.
Want to learn more about the case? Members can read ACA’s Daily Decision Drazen v. Pinto recap from 2022.
For more information on the TCPA, see ACA International’s TCPA Compliance Guide.
