Eleventh Circuit Vacates Approval Of GoDaddy TCPA Class Action Settlement

By Gerald L. Maatman, Jr., Jennifer A. Riley, Emilee Crowther, and Zachary J. McCormack

Duane Morris Takeaways: In Drazen v. Pinto, No. 21-10199, 2024 U.S. App. 2024 LEXIS 11590 (11th Cir. May 13, 2024), the Eleventh Circuit vacated a district court’s final approval of a settlement of a class action alleging GoDaddy, Inc. violated the Telephone Consumer Protection Act (“TCPA”) by sending unwanted marketing texts and phone calls through a prohibited automatic telephone dialing system (“ATDS”). The Eleventh Circuit held the district court abused its discretion by approving the class-wide settlement, which would have provided up to $35 million to pay class members’ claims and up to $10.5 million to class counsel in attorneys’ fees. The Eleventh Circuit opined that the district court erred by overlooking evidence of collusion between class counsel and GoDaddy’s attorneys.

The Eleventh Circuit concluded that the district court inappropriately certified the class, and should not have approved the proposed settlement agreement and granted class counsel’s motion for attorneys’ fees. In doing so, the district court overlooked evidence of collusion between class counsel and GoDaddy’s attorneys, treated the settlement as a common fund instead of a claims-made resulution, and improperly calculated attorney fees after erroneously concluding it was not a coupon settlement. The Eleventh Circuit remanded the case back to the district court for further proceedings.

The Eleventh Circuit’s 123-page opinion offers a treasure trove of insights regarding the need for constant vigilance when it comes to TCPA compliance — particularly for employers involved in these types of class actions.

Case Background

GoDaddy, Inc., a publicly traded multi-billion-dollar U.S. corporation, provides services – including domain registration, website hosting, payment processing, and marketing support – to entrepreneurs around the globe. Id. at *2. The Drazen litigation consisted of three consolidated TCPA class action lawsuits brought against GoDaddy alleging the company sent unwanted marketing texts and phone calls through ATDS. Id. at *13. The parties eventually negotiated a settlement agreement where GoDaddy would provide up to $35 million to pay class members’ claims and up to $10.5 million to class counsel in attorneys’ fees. Id. at *41. The plaintiffs moved the district court to certify a Rule 23(b)(3) class for settlement purposes, to preliminarily approve the negotiated settlement agreement, and to approve the draft notice of proposed settlement to class members. Id. at *21. The district court granted preliminary approval of the settlement and directed that notice of the proposed settlement be given to the class. Id. at *22.

Shortly after counsel emailed the notice to the class, the Supreme Court granted certiorari in Facebook, Inc. v. Duguid, 592 U.S. 395, 401-02 (2021), which took up the same principal issue in the plaintiffs’ consolidated actions: whether a device must have certain capabilities to constitute an auto dialer under the TCPA. Class counsel, anticipating an impending Supreme Court ruling in Facebook that could impact a settlement, urged the district court to enter a final judgment approving the settlement and grant its attorneys’ fees motion. Id. at *7.

The district court granted class counsel’s motion over the objection of Juan Pinto, an individual class member, who argued (i) the district court prematurely ruled on attorneys’ fees before the deadline for objections, and (ii) the fees awarded were far in excess of what class members would receive, making the settlement unfair, unreasonable, and inadequate. Id. at *8. Over the objections of this individual class member, the district court approved the settlement, and Juan Pinto appealed. Id. at *9.

The Eleventh Circuit’s Decision

The Eleventh Circuit concluded the district court abused its discretion in approving the class-wide settlement agreement. Among other oversight, the district court failed to account for the 2018 amendments to Rule 23(e)(2), it overlooked evidence indicating that the settlement agreement was the product of collusion, and that the notice of the proposed settlement failed to inform the absent class members of the claims, issues, or defenses in plaintiff’s cases as required by Rule 23(c)(2)(B)(iii), fundamental due process, and the district court’s fiduciary obligation to the absent class members. Id. at *9. The Eleventh Circuit highlighted various errors committed by the district court in its 123-page opinion, but focused primarily on three areas.

First, the Eleventh Circuit concluded that it was improper for the district court to determine the settlement as fair, reasonable, and adequate without considering Rule 23(e)(2)(A). Id. at *59. The district court also overlooked evidence indicating that the settlement agreement was the product of collusion, such as the overbroad, sweeping release provision and inadequate relief provided to the class relative to what class counsel and GoDaddy received. Id. at *60. Rule 23 and due process require that, in finalizing a class settlement, the parties and the district court must give absent class members a meaningful opportunity to opt-out or challenge the class settlement. Id. at * 66.

Second, the Eleventh Circuit determined that the notice of the proposed settlement failed to inform the absent class members of the “claims, issues, or defenses” in the plaintiffs’ cases as required by Rule 23(c)(2)(B)(iii), fundamental due process, and the district court’s fiduciary obligation to the absent class members. Id. at *71. The Eleventh Circuit adopted the interpretation of Rule 23(c)(2)(B)(iii) as “conjunctive”, and that class members must be informed not only of the claims asserted, but also of the dispositive issue in Facebook and how its decision would affect the case. Id. at *77. The Eleventh Circuit’s opinion further suggested that additional notice should have been provided regarding this development.

Third, the Eleventh Circuit found that the district court erred in three ways when it calculated attorney’s fees considering it: (1) misapplied Rule 23(h), (2) treated the settlement as a common fund when it was claims-made, and (3) determined that this was not a settlement involving coupons under the Class Action Fairness Act (“CAFA”) and thus declined to examine class counsel’s motion for attorney’s fees with CAFA-mandated scrutiny and procedures. Id. at *9. First, the district court failed to give absent class members advance notice of class counsel’s fee motion, which disregarded the manifest intent of Rule 23(h). Id. at *79. The schedule proposed by the parties and adopted by the district court provided class members with only 7 days to review the attorney’s fees motion before the objection deadline, and the notice did not specify when that motion would be filed, which the Eleventh Circuit strongly criticized. Id. at *80. Second, although labeled a “common fund,” the settlement really involved a “claims made” structure where class counsel may recover the full amount of the attorneys’ fees sought; the class members, however, recover only if they submit claims. Id. at *79. Finally, the district court declined to apply class CAFA-mandated scrutiny and procedures, which was an error as the settlement allowed the class members to choose a cash award instead of a voucher. Id. at *89.

For these reasons, the Eleventh Circuit vacated the judgment, and remanded to the district court for further proceedings.

Implications Of The Decision

The Eleventh Circuit’s opinion depicts the latest legal developments in the constantly changing TCPA landscape, and the need to structure class settlement agreements in a way that obtains peace and withstands judicial scrutiny. In an effort to avoid expensive repercussions, employers and corporate counsel must exercise caution when drafting settlement documents in class-wide resolutions. Corporate counsel should take note of the dangers of the TCPA, as well as the potential pitfalls in faulty class action settlement agreements, and continue to monitor this space for future developments.


The Class Action Weekly Wire – Episode 51: 2024 Preview: TCPA Class Action Litigation

Duane Morris Takeaway:
This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jennifer Riley and associate Derek Franklin with their discussion of 2023 developments and trends in TCPA class action litigation as detailed in the recently published Duane Morris TCPA Class Action Review – 2024.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Google Podcasts, the Samsung Podcasts app, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, YouTube or our RSS feed.

Episode Transcript

Jennifer Riley: Welcome to our listeners! Thank you for being here for our weekly podcast, the Class Action Weekly Wire. I’m Jennifer Riley, partner at Duane Morris, and joining me today is associate Derek Franklin. Thank you for being on the podcast.

Derek: Thank you Jen! Happy to be part of the podcast.

Jen: Today on the podcast we are discussing the recent publication of the inaugural edition of the Duane Morris Telephone Consumer Protection Act (or TCPA) Class Action Review. Listeners can find the eBook publication on our blog, the Duane Morris Class Action Defense blog. Derek, can you tell listeners a bit about the publication?

Derek: Absolutely Jen. The TCPA has long been a focus of litigation, particularly for class actions. To that end, the class action team at Duane Morris is pleased to present the TCPA Class Action Review – 2024. This publication analyzes the key TCPA-related rulings and developments in 2023 and the significant legal decisions and trends impacting this type of class action litigation for 2024. We hope that companies will benefit from this resource in their compliance with these evolving laws and standards.

Jen: In 2023, courts across the country issued a mixed bag of results leading to major victories for both plaintiffs and defendants. Derek, how often were classes certified in TCPA actions in 2023?

Derek: There were wins on both sides, but the plaintiffs’ bar came away ahead in terms of getting classes certified. Courts granted motions for class certification nearly 70% of the time, and denied class certification motions only 30% of the time in 2023.

Jen: Interesting and a fairly high certification rate for these cases. Another notable legal issue that courts grappled with in the context of the TCPA during 2023 is the threshold for what can constitute a concrete injury for purpose of having Article III standing to bring a viable claim. Were there any notable rulings in 2023 that discussed Article III standing?

Derek: Yes Jen, there were several rulings that discussed these very issues in the TCPA Class Action Review. In Drazen, et al. v. Pinto, for example, the Eleventh Circuit ultimately concluded that a single unwanted text message may not “be highly offensive to the ordinary reasonable man,” but it was nonetheless offensive to some degree to a reasonable person. The Eleventh Circuit ruled that the harm of receiving one text message shared a close relationship with the harm underlying the tort of intrusion upon seclusion, and thus, receipt of an unwanted text message causes a concrete injury sufficient to confer Article III standing.

Jen: Thanks so much Derek, I anticipate that these standing questions will remain hotly debated in the courts in 2024. The Review also talks about the top TCPA settlements in 2023. How did plaintiffs do in securing settlement funds last year?

Derek: Plaintiffs did very well in securing high dollar settlements in 2023. The top 10 TCPA class action settlements totaled $103.45 million.

Jen: We will continue to track those settlement numbers in 2024, as record-breaking settlement amounts have been a huge trend we have tracked the last two years. Thanks Derek for being here today, and thank you to the loyal listeners for tuning in! Listeners please stop by the blog for a free copy of the TCPA Class Action Review e-book!

Derek: Thanks for having me Jen and thanks to all the listeners!

Introducing The All-New Duane Morris TCPA Class Action Review – 2024!

By Gerald L. Maatman, Jr., Jennifer A. Riley, Emilee Crowther, and Ryan Garippo

Duane Morris Takeaway: The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., has long been a focus of consumer litigation, particularly for class actions. Since the TCPA was enacted 30 years ago, the methods and technology that businesses use to engage and interact with customers has evolved and changed. The trend of states enacting or amending their own mini-TCPAs shows no signs of slowing down, making this subject area a likely continued focus for the plaintiffs’ class action bar in years to come.

To that end, the class action team at Duane Morris is pleased to present a new publication – the 2024 edition of the TCPA Class Action Review. We hope it will demystify some of the complexities of TCPA class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues.  We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with TCPA class action litigation.

Click here to download a copy of the Duane Morris TCPA Class Action Review – 2024 eBook.

Stay tuned for more TCPA class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

The Class Action Weekly Wire – Episode 22: TCPA Class Action Litigation


Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jennifer Riley, Katelynn Gray, Sheila Raftery Wiggins, and associate Shaina Wolfe with their analysis of key trends and notable rulings in the class action landscape of the Telephone Consumer Privacy Act (“TCPA”). We hope you enjoy the episode.

Episode Transcript

Jennifer Riley: Thank you for being here again, for the next episode of our Friday weekly podcast, the Class Action Weekly Wire. I’m Jen Riley, partner at Duane Morris, and joining me today are partners Sheila Raftery Wiggins and Katelynn Gray and associate Shaina Wolfe. Thank you guys for being on the podcast today.

Today we wanted to discuss trends and important developments in Telephone Consumer Protection Act or “TCPA” class action litigation. The TCPA has long been a booming focus of consumer litigation, particularly in the class action space. The statute was enacted in 1991 – it’s a federal statute – it’s aimed at protecting consumers from companies that use ATDS, meaning automatic telephone dialing systems, to engage in mass telemarketing methods, including robocalls. The TCPA originally focused on unwanted telephone calls and faxes. For many years, plaintiffs successfully have alleged that a defendant used an automatic telephone dialing system (ATDS) to call or send messages to a cell phones without obtaining prior express consent.

Sheila, can you explain some of the recent Supreme Court litigation governing the TCPA’s interpretation – in particular, what constitutes an autodialer?

Sheila Raftery Wiggins: Sure, Jen. In 2021, the U.S. Supreme Court issued its ruling Facebook, et al. v. Duguid, which adopted a narrow interpretation of what devices count as an ATDS. Before Duguid, some federal circuits held that equipment could qualify as an autodialer just because it autodialed stored phone numbers that had not been randomly or sequentially generated in the first instance. But the Supreme Court rejected this interpretation and held that “a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” because the contrary interpretation “would capture virtually all modern cell phones, which have the capacity to store telephone numbers to be called and dial such numbers.”

Jen: Got it. Are there other types of communication governed by the TCPA?

Katelynn Gray: As you can imagine, Jen, the TCPA was enacted thirty years ago, so of course the methods and the technologies that businesses use to engage customers now has changed. I’m sure all of you have received text messages from businesses for a variety of different reasons, including to communicate with customers, solicit consumer feedback, announce product promotions, identify the status of a delivery, even utilize two-factor security authentication. So, as a result of that – as a result of the changes that have occurred in the last thirty years – courts have now begun interpreting the TCPA to include text messages. The TCPA also empowers the Federal Communications Commission, or something that we refer to as the FCC, to “prescribe regulations to implement” the statute, and to create exemptions to statutory liability “by rule or order.” 47 U.S.C. § 227(b)(2)(B). So under this authority, the FCC has actually created a “two-tier system of consent” for TCPA liability, with different kinds of calls essentially requiring different types of consent.

Jen: Shaina, can you talk about how successful the plaintiffs’ bar has been in obtaining class certification in TCPA class action cases?

Shaina Wolfe: The plaintiffs’ bar was fairly successful in 2022 where they sought class certification over TCPA issues, particularly relating to or involving robocalls. The plaintiffs’ bar won 67% of motions for class certification, and companies secured denials in 33% of the decisions.


Jen: So it sounds like the plaintiffs’ bar has been fairly successful overall. Sheila, can you comment on some of the notable successful certification rulings in this space?

Sheila: Sure – in Head, et al. v. Citibank, N.A., the plaintiff received 100 robocalls from the defendant, a bank, over the course of three months regarding an overdue credit account of a man she did not know. The plaintiff was never a customer of the defendant and did not authorize the man or anyone else to open an account with the defendant using her cellphone number. The plaintiff filed a class action, alleging that the defendant routinely violated the TCPA by placing calls using an artificial or prerecorded voice to telephone numbers assigned to a cellular telephone service, without prior express consent. The court granted the motion. The court explained that the defendant did not deny that it places billions of calls each year regarding delinquent accounts, or that millions of accounts in its system are marked “wrong number” and that at least one unsolicited call must be placed to the number before a telephone number is marked wrong. Moreover, the court noted that the defendant did not dispute that it called the plaintiff repeatedly before it marked the account associated with her number “cease-and-desist,” making a clear inference that there may be numbers not yet marked “wrong,” “no consent,” or “cease-and-desist” for which the defendant does not have authorization to robocall. The court also found that the proposed class satisfied the typicality and commonality requirements, that common questions of law and fact predominated, and that in the absence of a class action, thousands of meritorious claims would likely go unredressed because the cost of litigation would dwarf any possible reward under the TCPA.

Jen: Thanks so much Sheila. Katelynn, were there any memorable class certification rulings denying certification in 2022?

Katelynn: So there was one that I’ll talk about, but I just would generally say in 2022 it seems that defendants in TCPA class actions continued to succeed in defeating class certification by demonstrating that the proposed representative, or the individual who sought to represent the class, was inadequate or atypical, so essentially didn’t have anything in common with the other class members – especially where the circumstances surrounding their consent distinguish them from those other class members. So one of those examples was a case called Bustillos, et al. v. West Covina Corp. Fitness. This was a case where a former gym member went into the defendant’s gym and he provided his phone number to an employee who entered it into his profile – and I’m sure a lot of us do this all the time. Unfortunately for the company, the phone number provided was actually one digit off from the actual number of the former gym member – and belonged to the plaintiff in this case. At one point, the defendant authorized its marketing agency to send out a one-time pre-recorded telephone message to former gym members and guests who had expressed interest in joining the gym at a certain point – essentially inviting them to join or rejoin. Most of these individuals had provided their telephone numbers when they filled out a guest registration or a contract with the defendant when they joined the gym the first time. The plaintiff was one of 1,400 individuals that received a pre-recorded message on her cell phone from the defendant offering a gym membership promotion. So in this instance, the Court denied certification because they found the plaintiff in this case did not allege or produce evidence that any of the other messages were sent to wrong numbers and therefore found she was not typical to the members of the class she proposed to represent.

Shaina: Another common reason that courts deny class certification in TCPA cases is due to predominance of an individualized issue. For TCPA cases, one of the most powerful affirmative defenses is showing consent to the telemarketing messages. Courts have tended to rule in favor of defendants where they can show that a substantial portion of the proposed class consented to the communications; the purpose and nature of each communication varied from person to person; or identifying who provided consent and who did not would be impractical or impossible. There were also several case rulings that demonstrated this defense, including Cooper v. Neilmed Pharmaceuticals, Inc., where the defendant successfully offered five methods by which it received prior express invitation or permission from recipients before sending faxes, which creates almost a sort of presumption that the consent issue will be individualized.

Jen: Before we turn to settlements, if I recall the largest TCPA jury verdict ever was overturned on appeal last year, is that correct?

Sheila: That’s correct. The largest TCPA jury verdict involved in an award of $925 million, however, the defendant successfully overturned the verdict on appeal. In Wakefield, et al. v. ViSalus, Inc., the plaintiffs filed a class action alleging that the defendant made unlawful telephone calls using prerecorded voice messages in violation of the TCPA. Following a trial, the jury returned a verdict in favor of the plaintiffs and found that the defendant sent over 1.8 million prerecorded calls to class members without prior express consent. Accordingly, the jury awarded the minimum statutory damages of $500 per call for a verdict against the defendant of $925 million. The defendant filed a post-trial motion challenging the constitutionality of the statutory damages award under the due process clause of the Fifth Amendment as being unconstitutionally excessive. The district court denied the motion. On appeal, the Ninth Circuit vacated and remanded the district court’s denial of the defendant’s motion. On appeal, the defendant contended that even if the TCPA’s statutory penalty of $500 per violation was constitutional, an aggregate award of $925,220,000 was so “severe and oppressive” that it violated the defendant’s due process rights. So this case has ultimately obtained an extension of time from the Supreme Court to file a petition for certiorari.

Jen: Wow, we will absolutely keep listeners updated as to what happens next in that case. As far as TCPA settlements, I doubt there were any quire that large, but were there any significant settlements over the past year – Shaina, can you comment on that?

Shaina: I can. Although none were in the hundreds of millions, there were several multi-million class-wide TCPA settlements in 2022. Four of the top 10 were over $15 million and the value of the top 10 totaled over $134 million.


Jen: Thanks Shaina. Great insights and analysis, everyone. I know that these are only some of the cases that had interesting rulings over the past year in the TCPA class action space. The remainder of 2023 is sure to give us some more insights into the ways that class actions are evolving in the TCPA class litigation area. Thanks again everybody for joining us today, thanks to the panel – we look forward to connecting again next Friday on the next episode of the Class Action Weekly Wire.

Ninth Circuit Finds Article III Standing Under The TCPA For Owner Of Registered Phone With Third-Party User

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Nick Baltaxe

Duane Morris Takeaways: On June 30, 2023, in Kristen Hall v. Smosh Dot Com, Inc., DBA Smosh, et al., No. 22-16216 (9th Cir. June 30, 2023), the Ninth Circuit reversed the district court’s dismissal for lack of Article III standing of a class action under the Telephone Consumer Protection Act (the “TCPA”) and remanded the claim for further proceedings.  In doing so, the Ninth Circuit held that the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry suffers an injury in fact when unsolicited telemarking calls or texts are sent to the number even if the communications are intended for or solicited by another individual or someone else is using the phone at the time the messages are transmitted.  In so holding, the Ninth Circuit established that the receipt of unsolicited phone calls or text messages in violation of the TCPA is a “concrete injury in fact sufficient to confer Article III standing” even if the individual bringing the claim was not the phone’s primary user.  As a result, the ruling is required reading for any corporate counsel dealing with TCPA class action litigation.

Case Background

Plaintiff Kristen Hall, a resident of Willis, Texas, was in possession of a cellular phone that was used primarily for residential purposes and, at times, provided to her 13-year old son to use in his free time.  Hall, No. 22-16216, at 5-6.  Plaintiff placed this number on the National Do-Not-Call Registry in order to avoid invasive and irritating solicitation calls and to protect her son from any potential threats.  Id.  Plaintiff alleged that she was the owner and subscriber of the cell phone at issue and that she listed its number on the Do-Not-Call Registry.  Id. at 9.

On or around November 3, 2019, Defendants – who are digital content creators producing “sketch comedy” for an adolescent audience and selling merchandise that relates to their digital content – obtained the personal information for Plaintiff’s son and sent him at least five text messages between December 25, 2019, and June 29, 2020.  Id.  These texts specifically solicited business and offered discounts on products offered by Defendant Smosh Dot Com, Inc., which Plaintiff alleged was “irritating, exploitative, and invasive” and “precisely the type of communications she sought to avoid when she registered her number on the Do Not Call [R]egistry.”  Id.  Plaintiff’s First Amended Complaint alleged that Defendants violated § 227(c) of the Telephone Consumer Protection Act (“TCPA”) by sending text messages to numbers listed on the National Do-Not-Call Registry.  Id. 

Defendants moved to dismiss the First Amended Complaint for failure to state a claim and for lack of standing. They argued that Plaintiff lacked Article III standing because she failed to plead that she was the user of the phone or actually received any of the soliciting text messages from Defendants.  Id. at 6-7.  Specifically, Defendants argued that because she provided the phone to her son, Plaintiff was not the actual user of the phone or the actual recipient of the messages and, therefore, did not suffer an injury and was instead attempting to assert the legal right of a third party.  Id. at 9-10.  The district court granted the motion to dismiss on the basis that Plaintiff did not have Article III standing merely because she was the subscriber/owner of the phone while not addressing any of the merits issues.  Id. at 7.  Plaintiff appealed this ruling.  Id.

The Ninth Circuit’s Ruling

The Ninth Circuit reversed the district court’s ruling.

It held that Plaintiff had Article III standing to bring the claims under the TCPA.  The Ninth Circuit noted that it was well established that unsolicited telemarketing phone calls or text messages in violation of the TCPA is a concrete injury in fact that, itself, is enough to confer Article III standing. It cited to Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (holding that “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients).  Id. at 8.  Importantly, the Ninth Circuit made clear that the relevant question for Article III standing is whether Plaintiff suffered a cognizable injury.  Id. at 12.  The Ninth Circuit reasoned that because a violation of the TCPA is a “concrete injury,” and the Do-Not-Call provisions of the TCPA proscribe unsolicited calls and text messages to phone numbers on the Do-Not-Call Registry, Plaintiff’s allegations that she received unsolicited text messages on a number on the registry were sufficient to confer standing.  Id.

To reach this holding, the Ninth Circuit found no precedent that the owner of a cell phone also must be the primary or customary user to be injured by unsolicited phone calls or text messages.  Id. at 13.  The Ninth Circuit reasoned that requiring a certain level of phone usage to be a prerequisite for standing would go against Congress’ intention of preventing individuals on the Do-Not-Call Registry from receiving unsolicited text messages.  Id.  The Ninth Circuit also opined that this holding would not prevent other users of the phone from bringing claims, as they may also suffer a concrete injury from an unwanted call or text message.  Id.

Importantly, the Ninth Circuit did not address the merits of Plaintiff’s claim, and refused to discuss Defendants’ contention that Plaintiff’s son solicited the text messages by signing up for telecommunications through an online form.  Id.  Instead, the Ninth Circuit held that, even if Plaintiff’s son solicited the messages, therefore affecting the merits of her claim, Plaintiff still had standing to bring her own claim by the virtue of her status as the subscriber and owner of the phone.  Id. at 14.  The Ninth Circuit additionally did not address the question of whether a subscriber would have Article III standing to litigate a TCPA claim if he or she authorized a third-party user to provide consent to a telemarketer, leaving that question open for the district court to discuss on remand.  Id. at 9.

Key Takeaways

The Ninth Circuit has now established that all that is required for Article III standing under the TCPA is the receipt of unsolicited text messages or phone calls to a number owned or subscribed to by an individual and found on the Do-Not-Call Registry, even if that individual is not the primary user of the phone.

This ruling curtails attacks on the pleadings by TCPA defendants, especially with the language included by the Ninth Circuit that standing is “not exclusive” and numerous subscribers/users can bring TCPA claims.  However, with the Ninth Circuit leaving open the question of whether a subscriber would have standing if he or she authorized a third-party user to provide consent to receive telemarketing, companies defending TCPA claims still may have a path forward to attacking standing for subscribers of phones on the Do-Not-Call Registry with third-party users.  Until then, companies should be cognizant that even if a phone user solicited communications by signing up for those communications, the phone subscriber will still have standing to bring a claim under the TCPA.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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