In the case of Drazen v. Pinto, the 11th Circuit Court of Appeals sitting en banc ruled unanimously that plaintiffs who received a single unwanted telemarketing text message suffered a concrete injury.
In 2019, Susan Drazen filed a class action lawsuit against GoDaddy alleging that the web-hosting company used a prohibited automatic telephone dialing system (ATDS) to make promotional calls and send text messages to sell its services and products. The complaint alleged that these calls and texts violated the TCPA.
After consolidating Drazen’s case with other class action suits against GoDaddy, the plaintiffs reached a class settlement for $35 million and in January 2020, the plaintiffs filed an unopposed motion for preliminary approval of that agreement. The settlement agreement defined the class to include “all persons within the United States who received a call or text message to his or her cellular phone from” GoDaddy between November 2014 and December 2016.
In response to the motion, the district court issued a sua sponte order “to examine its own jurisdiction” citing a prior 11th Circuit decision in Salcedo v. Hanna which held that a receipt of a single text message is not a concrete injury. Because the settlement defined the class to include people who only received one text message, the district court ordered the parties to brief “how this case is distinguishable from Salcedo v. Hanna.” After receiving the parties’ briefs, the district court recognized that the federal circuit courts were split on whether one text message was sufficient for standing to sue, that it was a nationwide settlement, and reasoned that GoDaddy could settle claims that were “meritless” in the 11th Circuit. The district court was prepared to approve the settlement when Juan Enrique Pinto objected and claimed that the settlement was a “coupon settlement” subject to the Class Action Fairness Act (CAFA). The district court ultimately held that the settlement was not a “coupon settlement” under CAFA and approved the settlement.
Pinto appealed the approval of the settlement to the 11th Circuit. The original 11th Circuit three judge panel dismissed the appeal for lack of jurisdiction citing Salcedo stating that the class definition does not meet Article III standing requirements, vacated the settlement approval, and remanded the case back to the district court to give the parties the opportunity to revise the class definition.
Pinto then requested the entire 11th Circuit to rehear the case and “to reevaluate the Salcedo holding.” As we’ve previously discussed, the 11th Circuit agreed and that brought us to this decision.
The 11th Circuit was asked to decide whether the plaintiffs enjoy standing to file suit. To have standing, the 11th Circuit recognized that a plaintiff must satisfy three requirements: (1) that she suffered an injury in fact, (2) that the defendant likely caused her injury, and (3) that a favorable judicial decision can likely redress her injury. This case centered on the first requirement – whether the plaintiffs suffered a concrete injury in fact by receiving one unsolicited marketing text message.
The plaintiffs argued that receipt of the one text message was an invasion of privacy that shared a close relationship with the traditional harm associated with intrusion upon seclusion. GoDaddy argued that the receipt of one unwanted text message lacked a close relationship to an intrusion upon seclusion because it did not rise to the degree of offensiveness that the common law required.
The 11th Circuit reasoned that courts should ask whether the harms share a “close relationship” in kind, not degree. The Court reviewed the other circuit court’s positions. The 7th Circuit focuses on kind and not degree. The 4th, 5th, 6th, 9th, and 10th Circuits look at the “types of harms protected.” The 2nd and 3rd Circuits focus on the “character” of the old and new harms. A total of seven circuit courts have declined to consider the degree of harm to state a claim for intrusion upon seclusion. The 11th Circuit found that Congress is empowered to decide what degree of harm is enough so long as the harm is similar in kind to a traditional harm. The Court stated that’s exactly what Congress did in the TCPA when it provided a cause of action to redress the alleged harm that unwanted texts and calls cause.
Ultimately, the court held that harm associated with an unwanted text message was similar in kind to the harm underlying the tort of intrusion upon seclusion, and consequently that the receipt of one text message causes a concrete injury sufficient for Article III standing.