Susan Drazen v. Mr. Juan Pinto
74 F.4th 1336
11th Cir.2023Background
- In August 2019 Suzan Drazen filed a TCPA class action against GoDaddy alleging the company sent automated telemarketing calls and text messages (2014–2016) using an ATDS.
- The proposed nationwide settlement class included persons who received even a single GoDaddy call or text; settlement offered $150 voucher or $35 cash per class member.
- The district court sua sponte questioned Article III jurisdiction under this Circuit’s Salcedo v. Hanna precedent, which held a single unwanted text is not a concrete injury.
- The district court approved the settlement (reduced attorneys’ fees on rehearing); objector Juan Pinto appealed, raising CAFA and fee issues, but the panel dismissed for lack of jurisdiction under Salcedo and remanded to redefine the class.
- The en banc Eleventh Circuit reviewed whether receiving a single unwanted automated text message constitutes a concrete Article III injury, focusing on whether that harm is closely related to the common-law tort of intrusion upon seclusion.
- The court held the receipt of an unwanted text is a concrete injury because it is similar in kind (though smaller in degree) to intrusion upon seclusion, and remanded the case to address the CAFA issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a single unwanted automated text message is a concrete Article III injury | Drazen: receipt of an unwanted TCPA text invades privacy and is a concrete, redressable injury | GoDaddy: a single text is not sufficiently offensive; Salcedo shows single texts lack concreteness | Held: A single unwanted text causes a concrete injury because it is similar in kind to intrusion upon seclusion (smaller in degree but not absent) |
| Whether the TCPA-created harm relates closely to the common-law tort of intrusion upon seclusion | Drazen: TCPA’s privacy protection is a modern analogue to intrusion upon seclusion | GoDaddy: intrusion requires conduct “highly offensive” to a reasonable person; single texts do not meet that element | Held: The harms are similar in kind (intrusion into peace and quiet of a private realm); degree-of-offensiveness is not dispositive |
| Role of Congress/TCPA in standing analysis | Drazen: Congress can identify intangible harms; TCPA establishes a cognizable privacy injury for texts | GoDaddy: Congress cannot invent injuries; statutory creation is not conclusive | Held: Congressional judgment is instructive; where the harm is similar in kind to a traditional injury, Congress can recognize a lower quantum of harm |
| Whether the settlement class may include single-text recipients and CAFA/fee consequences | Pinto: settlement involves vouchers (coupon settlement) and CAFA procedures apply; fee timing objection | GoDaddy: settlement and fee awards valid | Held: Court did not resolve CAFA merits; remanded to panel to consider CAFA and fee issues consistent with standing ruling |
Key Cases Cited
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (framework requiring asserted intangible harms to have a close relationship to traditional common-law harms)
- Spokeo, Inc. v. Robbins, 578 U.S. 330 (2016) (injury-in-fact must be concrete and particularized; congressional enactments are instructive but not dispositive)
- Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019) (panel held receipt of a single unwanted text message insufficient for concrete injury)
- Hunstein v. Preferred Collection & Management Services, Inc., 48 F.4th 1236 (11th Cir. 2022) (en banc) (comparator analysis; harms must be similar in kind and not omit an essential element)
- Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020) (one unwanted text is similar in kind to intrusion upon seclusion)
- Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85 (2d Cir. 2019) (one unwanted text supports standing via common-law analogue)
- Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019) (receiving more than one unwanted telemarketing call bears close relationship to intrusion upon seclusion)