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Eighth Circuit Class Action Litigation | Fall 2019

Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019)

Eighth Circuit finds that receiving telemarketing voice messages in violation of the TCPA creates standing, but that billion-dollar statutory penalty award violated due process.

This decision addresses two increasingly prominent issues arising in class actions: Article III standing and statutory penalties.

The court first addressed whether plaintiff’s receipt of telemarketing voice messages that violated the Telephone Consumer Protection Act (TCPA) qualified as a “concrete injury” sufficient for Article III standing. Relying on Supreme Court and sister circuit precedent, the panel held that the proper analysis required determining whether the suffered harm had a close relationship to a type of harm traditionally actionable at common law. Because the receipt of telemarketing messages without prior consent “bear[ed] a close relation to the types of harms traditionally remedied by tort law, particularly the law of nuisance,” 930 F.3d at 959, the panel held that the named plaintiffs suffered a concrete injury and thus had standing.

Next, the panel addressed whether the district court erred in remitting the statutory damages award from $1.6 billion ($500 per call) to $32 million ($10 per call). Because defendant plausibly believed it was not violating the TCPA, and only about 7% of calls relayed the violative message, the court held the $1.6 billion in statutory damages to be “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable,” and thus in violation of the Due Process Clause. Id. at 963 (quoting St. Louis, I. Mt. & So. Ry. Co. v. Williams, 251 U.S. 63, 67 (1919)). The court thus upheld the district court’s 98% reduction of statutory damages.

Part of the Fall 2019 Class Action Litigation Newsletter available here.

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About this Author

Robert Herrington, Greenberg Traurig Law Firm, Los Angeles, Cybersecurity Litigation Attorney

Robert J. Herrington is an attorney in firm's Products Liability & Mass Torts Practice. He focuses his practice on defending consumer products companies in complex, multi-party litigation, including class actions, government enforcement litigation, product defect litigation and mass torts. Rob represents companies in a variety of industries, including apparel and footwear, retail, emerging technologies, consumer electronics, video game, telecommunications, advertising and publicity, online retailing, food and beverage, nutritional supplements, personal care products...

Stephen L. Saxl Class Action Attorney Greenberg Traurig

Stephen L. Saxl is the Co-Chair of the Class Action Litigation Group. He concentrates his practice on defending class actions and complex litigation matters in federal court and New York State courts. His class action experience includes cases in the securities, retail, telecommunications, publishing, insurance, Internet and tobacco industries. He has defended clients against statutory and common law claims including fraud, unfair trade practices, Racketeer Influenced and Corrupt Organizations (RICO), breach of contract and price-fixing.


  • Class actions
  • Complex civil litigation
  • Securities and broker-dealer litigation
  • Commercial litigation
  • Consumer litigation
  • Antitrust
  • Media
  • Privacy litigation
  • Product liability