USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 1 of 51
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`No. 21-10199
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`Susan Drazen, et. al., on behalf of herself and
`other persons similarly situated,
`
`Plaintiffs-Appellees,
`
`GoDaddy.com, LLC, a Delaware Limited
`Liability Company,
`
`Defendant-Appellee,
`
`v.
`
`Juan Enrique Pinto,
`
`Movant-Appellant.
`
`On Appeal from a Final Judgment of the United States District Court
`for the Southern District of Alabama
`(Case No. 1:19-cv-00563-KD-B)
`
`CORRECTED PETITION FOR REHEARING EN BANC
`
`UNDERWOOD & RIEMER, P.C.
`Earl P. Underwood, Jr.
`21 South Section Street
`Fairhope, AL 36532
`Tel: (251) 990-5558
`epunderwood@alalaw.com
`
`Counsel for Plaintiffs-Appellees
`
`August 18, 2022
`
`

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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 2 of 51
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`CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
`DISCLOSURE STATEMENT
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`Pursuant to this Court’s Rule 26.1-1, Plaintiffs-Appellees Susan
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`Drazen and Jason Bennett state that they are individual persons and
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`that there are no publicly held corporations that own ten percent or more
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`of any stock issued by either Plaintiff. Plaintiffs further state that the
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`following people are believed to have an interest in the outcome of this
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`appeal:
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`
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`Bandas Law Firm, P.C. (representing Movant-Appellant Juan
`Enrique Pinto);
`
`Attorney Christopher A. Bandas (representing Movant-Appellant
`Juan Enrique Pinto);
`
`The Honorable Magistrate Judge Sonja F. Bivins (United States
`District Court for the Southern District of Alabama);
`
`Attorney Phillip A. Bock (representing Plaintiff-Appellee Susan
`Drazen);
`
`Bock Hatch & Oppenheim (representing Plaintiff-Appellee Susan
`Drazen);
`
`Attorney Robert W. Clore (representing Movant-Appellant Juan
`Enrique Pinto);
`
`Attorney John R. Cox (representing Plaintiff-Appellee Susan
`Drazen);
`
`Attorney Matthew B. Criscuolo (representing Defendant-Appellee
`GoDaddy.com, LLC);
`
`i
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 3 of 51
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`Attorney Thomas Jefferson Deen, III (representing Movant-
`Appellant Juan Enrique Pinto);
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`Plaintiff-Appellee Susan Drazen;
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`The Honorable Kristi K. DuBose (United States District Court for
`the Southern District of Alabama);
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`Defendant-Appellee GoDaddy.com, LLC;
`
`Attorney Robert M. Hatch (representing Plaintiff-Appellee Susan
`Drazen);
`
`Objector Steven F. Helfand;
`
`Plaintiff John Herrick;
`
`Kenneth J. Reimer Attorney at Law (representing Plaintiff-
`Appellee Susan Drazen);
`
`Attorney Trinette G. Kent (representing Plaintiff-Appellee Susan
`Drazen);
`
`Kent Law Offices (representing Plaintiff-Appellee Susan Drazen);
`
`Law Offices of John R. Cox (representing Plaintiff-Appellee Susan
`Drazen);
`
`•
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`• Mark K. Wasvary, P.C. (representing Plaintiff-Appellee Susan
`Drazen);
`
`•
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`Attorney Miles McGuire (representing Plaintiff-Appellee Susan
`Drazen);
`
`• McGuire Law, P.C. (representing Plaintiff-Appellee Susan
`Drazen);
`
`•
`
`
`
`Attorney Michael J. McMorrow (representing Plaintiff-Appellee
`Susan Drazen);
`
`ii
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 4 of 51
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`• McMorrow Law, P.C. (representing Plaintiff-Appellee Susan
`Drazen);
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`•
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`•
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`•
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`Attorney Evan M. Meyers (representing Plaintiff-Appellee Susan
`Drazen);
`
`Attorney Cozen O’Connor (representing Defendant-Appellee
`GoDaddy.com, LLC);
`
`Attorney Jeffrey M. Monhait (representing Defendant-Appellee
`GoDaddy.com, LLC);
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`• Movant-Appellant Juan Enrique Pinto;
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`•
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`•
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`•
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`•
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`•
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`•
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`Attorney Kenneth J. Reimer (representing Plaintiff-Appellee
`Susan Drazen);
`
`Attorney Yevgeniy Y. Turin (representing Plaintiff-Appellee
`Susan Drazen);
`
`Attorney Earl Price Underwood, Jr. (representing Plaintiff-
`Appellee Susan Drazen);
`
`Underwood & Riemer, P.C. (representing Plaintiff-Appellee Susan
`Drazen);
`
`Attorney Mark K. Wasvary (representing Plaintiff-Appellee Susan
`Drazen);
`
`Attorney Paula L. Zecchini (representing Defendant-Appellee
`GoDaddy.com, LLC)
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`I hereby certify that, except as disclosed above, I am unaware of
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`any actual or potential conflict of interest involving the justices of the
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`Eleventh Circuit Court of Appeals, and I will immediately notify the
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`Court in writing upon learning any such conflict.
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`iii
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 5 of 51
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`August 18, 2022
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`Respectfully submitted,
`
`/s/ Earl P. Underwood, Jr.
`
`UNDERWOOD & RIEMER, P.C.
`Earl P. Underwood, Jr.
`21 South Section Street
`Fairhope, AL 36532
`Tel: (251) 990-5558
`epunderwood@alalaw.com
`
`Counsel for Plaintiffs-Appellees
`Susan Drazen and Jason Bennett
`
`iv
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`STATEMENT OF COUNSEL
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`I express a belief, based on a reasoned and studied professional
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`judgment, that this appeal involves the following question of exceptional
`
`importance:
`
`Whether a person who receives a single text message in violation of
`
`the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (TCPA),
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`has suffered concrete injury sufficient to have Article III standing to
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`pursue a TCPA claim Congress expressly authorized, as every other
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`circuit to address the issue has held.
`
`August 18, 2022
`
`Respectfully submitted,
`/s/ Earl P. Underwood, Jr.
`
`UNDERWOOD & RIEMER, P.C.
`Earl P. Underwood, Jr.
`21 South Section Street
`Fairhope, AL 36532
`Tel: (251) 990-5558
`epunderwood@alalaw.com
`
`Counsel for Plaintiffs-Appellees
`Susan Drazen and Jason Bennett
`
`v
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`

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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 7 of 51
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`TABLE OF CONTENTS
`
`CERTIFICATE OF INTERESTED PERSONS AND
`CORPORATE DISCLOSURE STATEMENT ....................................... i
`
`STATEMENT OF COUNSEL ................................................................... v
`
`TABLE OF AUTHORITIES .................................................................... vii
`
`ISSUE THAT MERITS EN BANC CONSIDERATION ........................... 1
`
`COURSE OF PROCEEDINGS AND CASE DISPOSITION .................... 4
`
`STATEMENT OF FACTS ......................................................................... 5
`
`REASONS FOR EN BANC REVIEW ....................................................... 6
`
`I. EVERY OTHER FEDERAL APPELLATE COURT TO ADDRESS
`TCPA STANDING HAS RULED CONTRARY TO SALCEDO. ......... 6
`
`II. THE STANDING ANALYSIS IN SALCEDO RUNS COUNTER TO
`OTHER DECISIONS FROM THIS CIRCUIT. ................................. 13
`
`III. THE PANEL DECISION CONFLICTS WITH SUPREME COURT
`JURISPRUDENCE ON REPRESENTATIONAL STANDING. ....... 15
`
`CONCLUSION ........................................................................................ 17
`
`CERTIFICATE OF SERVICE ................................................................. 20
`
`COPY OF OPINION ................................................................................ 21
`
`
`
`vi
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 8 of 51
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`TABLE OF AUTHORITIES
`
`Cases
`
`Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016) ................................ 1
`
`Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1273 (2019) ....................... 13
`
`Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686
`(5th Cir. 2021) ........................................................................ 2, 9, 10, 14
`
`Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC,
`858 F.3d 1362 (11th Cir. 2017) ............................................................ 12
`
`Gadelhak v. AT&T Servs., Inc.,
`950 F.3d 458 (7th Cir. 2020) ........................................................ 2, 8, 11
`
`Glasser v. Hilton Grand Vacations Co., LLC,
`948 F.3d 1301 (2020 ....................................................................... 12, 13
`
`Krakauer v. Dish Network, LLC,
`925 F.3d 643, 654 (4th Cir. 2019) ........................................................ 11
`
`Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85 (2d Cir. 2019); ......... 2, 8
`
`Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A.,
`781 F.3d 1245 (11th Cir. 2015); ....................................................... 2, 12
`
`Salcedo v. Hanna, 936 F.3d 1162 (2019) .............................................. v, 1
`
`Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ........................................ 5, 14
`
`Susinno v. Work Out World Inc., 862 F.3d 346 (2017) ............................. 7
`
`TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) ............................... 3
`
`Van Patten v. Vertical Fitness Grp., LLC,
`847 F.3d 1037 (9th Cir. 2017) .................................................... 2, 6, 7, 8
`
`Vermont Agency of Nat. Res. v. United States ex rel. Stevens,
`529 U.S. 765 (2000) .................................................................... 2, 14, 15
`
`Statutes and Rules
`
`47 U.S.C. § 227(b)(1)(A)(iii). ...................................................................... 1
`
`47 U.S.C. § 227(b)(3).................................................................................. 1
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`Federal Rule of Appellate Procedure 35 ................................................... 5
`
`
`
`vii
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 9 of 51
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`ISSUE THAT MERITS EN BANC CONSIDERATION
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`The TCPA bars using an automatic telephone dialing system “to
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`make any call” to a cellular number without prior express consent. 47
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`U.S.C. § 227(b)(1)(A)(iii). A text message is a “call” for purposes of the
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`TCPA. Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016). Congress
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`expressly authorized individual actions for injunctive relief and recovery
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`of at least $500 for each violation. 47 U.S.C. § 227(b)(3).
`
`In Salcedo v. Hanna, 936 F.3d 1162 (2019), a panel of this Court
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`ruled that receipt of a single unlawful text message is not an injury
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`sufficiently concrete so as to confer standing. Id. at 1172. According to
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`Salcedo, the “chirp, buzz, or blink of a cell phone receiving a single text
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`message is more akin to walking down a busy sidewalk and having a flyer
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`briefly waved in one’s face. Annoying, perhaps, but not a basis for
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`invoking the jurisdiction of the federal courts.” Id.
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`The panel in this case was duty-bound to follow Salcedo and,
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`consequently, vacated the class definition and approved settlement on
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`the ground that some class members received only a single text message
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`and thus lacked standing. See Slip. Op. at 18. This Court should grant a
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`1
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 10 of 51
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`rehearing en banc to reevaluate the Salcedo holding and to clarify the
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`law regarding the elements necessary to pursue a TCPA claim.
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`This standing issue is exceptionally important and warrants en
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`banc review. The decision in Salcedo hinders the ability of Congress to
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`effect enforcement of federal law prohibiting unwanted calls and texts
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`through private litigation, disregarding both the concrete harm to the
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`recipient and the widespread damage the practice inflicts on public phone
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`and data networks.
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`Every other circuit court to address the issue has held that a person
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`does, in fact, have standing to sue based on receipt of an unlawful
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`communication. See Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686, 690
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`(5th Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th
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`Cir. 2020) (Barrett, J.); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85,
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`93 (2d Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037,
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`1043 (9th Cir. 2017).
`
`The panel decision in Salcedo not only stands alone among the
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`circuit courts, but its analysis is in tension with other decisions from this
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`Court. See, e.g., Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S.,
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`P.A., 781 F.3d 1245, 1252 (11th Cir. 2015) (Sarris). Additionally, its
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`2
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 11 of 51
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`reasoning clashes with the doctrine of representational standing, which
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`the Supreme Court discussed at length in Vermont Agency of Natural
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`Resources v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000).
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`3
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`COURSE OF PROCEEDINGS AND CASE DISPOSITION
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`Plaintiff Susan Drazen brought this class-action lawsuit in 2019
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`against Defendant GoDaddy.com, LLC, alleging that GoDaddy violated
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`the TCPA by using an automatic telephone dialing system to send
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`promotional calls and text messages to her cell phone number. After
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`years of litigation, the parties submitted a proposed class settlement, and
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`the District Court for the Southern District of Alabama certified the class
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`and approved the settlement. An objector, Juan Enrique Pinto, filed an
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`appeal.
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`Without the benefit of any briefing or argument on the issue of
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`standing – an issue that was not raised on appeal – the panel ruled that
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`the class definition improperly included members that had received only
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`one text and therefore did not have standing, based on Salcedo and the
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`Supreme Court’s decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190
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`(2021). The panel also considered but did not decide whether a single
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`cellphone call meets the concrete injury requirement. Instead, the panel
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`vacated the certification and settlement and remanded the case to allow
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`the parties “to redefine the class with the benefit of TransUnion and its
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`common-law analogue analysis.” Slip Op. at 20.
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`4
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`STATEMENT OF FACTS
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`The District Court certified the class and approved the proposed
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`settlement based on the following class definition (with some exclusions
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`not relevant here):
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`All persons within the United States to whom, from November
`4, 2014 through December 31, 2016, Defendant placed a voice
`or text message call to their cellular telephone pursuant to an
`outbound campaign facilitated by the web-based software
`application used by 3Seventy, Inc., or the software programs
`and
`platforms
`that
`comprise
`the Cisco Unified
`Communications Manager.
`
`Slip Op. at 5.
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`After notice of the settlement was sent to the class members,
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`thousands of claims for benefits were submitted. The objector, Mr.
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`Pinto’s, appeal was limited almost exclusively to the issue of the District
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`Court’s award of attorneys’ fees, and the appellate briefing and oral
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`argument, likewise, only addressed the issue of attorneys’ fees and not
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`the issue of standing. Nonetheless, the panel decision held that “the class
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`definition does not meet Article III standing requirements,” and therefore
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`vacated the District Court’s order certifying the class and granting final
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`approval to the settlement. Id. at 10–11.
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`
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`5
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`REASONS FOR EN BANC REVIEW
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`Federal Rule of Appellate Procedure 35 states that en banc
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`consideration “is not favored and ordinarily will not be ordered unless”
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`necessary for uniformity or “the proceeding involves a question of
`
`exceptional importance.” Fed. R. App. P. 35(a). The holding in Salcedo –
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`which the panel in this case was required to follow – sets the bar for
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`access to the courts too high and separates this Court from all other
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`circuits to reach the issue. The standing ruling is also counter to other
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`decisions of this Court and disregards the doctrine of representational
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`standing. It is an issue of exceptional importance.
`
`I.
`
`EVERY OTHER FEDERAL APPELLATE COURT TO
`ADDRESS TCPA STANDING HAS RULED CONTRARY TO
`SALCEDO.
`
`The panel in Salcedo stated that it would “look to history and the
`
`judgment of Congress” to determine whether harms from a single text
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`message suffice to confer standing, as the Supreme Court instructed in
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`Spokeo, Inc. v. Robins, 578 U.S. 330 (2016). Salcedo, 936 F.3d at 1168.
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`The court noted the absence of findings on harms from unsolicited text
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`messages while acknowledging the technology did not exist when
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`Congress enacted the TCPA in 1991. Id. at 1169. It construed the
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`6
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 15 of 51
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`congressional record to “suggest that the receipt of a single text message
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`is qualitatively different from the kinds of things Congress was concerned
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`about when it enacted the TCPA.” Id.
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`According to the Salcedo panel, Congress enacted the TCPA based
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`on “a concern for privacy within the sanctity of the home that [does] not
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`necessarily apply to text messaging.” Salcedo, 936 F.3d at 1169.
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`Congress’s
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`“privacy and nuisance
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`concerns about
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`residential
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`telemarketing are less clearly applicable to text messaging.” Id.
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`Before Salcedo, the Ninth Circuit had addressed whether receipt of
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`two text messages conferred standing in Van Patten v. Vertical Fitness,
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`847 F.3d 1037 (9th Cir. 2017). The Ninth Circuit had reviewed many of
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`the same congressional findings and concluded that the plaintiff had
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`standing, but the Salcedo panel found Van Patten “unpersuasive”
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`because the Ninth Circuit purportedly did not examine “whether isolated
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`text messages not received at home” came within Congress’s stated
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`purpose of protecting consumers from unwanted calls. Id.
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`The court in Salcedo considered historical causes of action, such as
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`the tort of intrusion upon seclusion, trespass, and nuisance, and it
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`declared there was no analogue: “History shows that Salcedo’s allegation
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`
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`7
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`is precisely the kind of fleeting infraction upon personal property that
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`tort law has resisted addressing.” Salcedo, 936 F.3d at 1172.
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`The Ninth Circuit had, again, reached the opposite conclusion,
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`holding that actions “to remedy defendants’ invasions of privacy,
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`intrusion upon seclusion, and nuisance have long been heard by
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`American courts, and the right of privacy is recognized by most states.”
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`Van Patten, 847 F.3d at 1043. The Salcedo court disagreed, stating that
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`“an examination of those torts reveals significant differences in the kind
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`and degree of harm they contemplate providing redress for.” Salcedo, 936
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`F.3d at 1172.
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`The Third Circuit also sided in favor of standing to sue for a single
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`unlawful call to a cellphone in Susinno v. Work Out World Inc., 862 F.3d
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`346 (3rd Cir. 2017)—although the Salcedo decision makes no reference
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`to that case. In Susinno, the Third Circuit construed the legislative
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`findings and history differently than the panel in Salcedo. For example,
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`the court in Susinno found that the particular emphasis on residential
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`calls “does not limit—either expressly or by implication—the statute’s
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`application to cell phone calls.” Susinno, 862 F.3d at 349. And it found
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`that the complaint asserts “the very harm that Congress sought to
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`
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`8
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 17 of 51
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`prevent, arising from prototypical conduct prescribed by the TCPA.” Id.
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`at 351 (cleaned up).
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`A few months before the Salcedo ruling, the Second Circuit decided
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`Melito v. Experian Marketing Solutions, Inc., 923 F.3d 85 (2d Cir. 2019),
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`cert. denied, 140 S. Ct. 677 (2019), holding that “Plaintiff’s receipt of the
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`unsolicited text messages, sans any other injury, is sufficient to
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`demonstrate injury-in-fact.” Id. at 88. The court in Melito found the
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`alleged injury “has a close relationship to a harm that has traditionally
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`been regarded as providing a basis for a lawsuit,” as both the Ninth and
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`Third Circuits had ruled. Id. at 93 (citing Van Patten and Susinno). The
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`Salcedo decision does not reference Melito.
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`In 2020, then-Judge Amy Coney Barrett authored a unanimous
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`decision for the Seventh Circuit in Gadelhak v. AT&T Servs., Inc., 950
`
`F.3d 458 (7th Cir. 2020). On the historical front, the court observed that
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`the “common law has long recognized actions at law against defendants
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`who invaded the private solitude of another by committing the tort of
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`‘intrusion upon seclusion.’” Id. at 462. It expressly disagreed with
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`Salcedo’s historical analysis, noting that courts have “recognized liability
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`for intrusion upon seclusion for irritating intrusions,” and the “harm
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`
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`9
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 18 of 51
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`posed by unwanted text messages is analogous to that type of intrusive
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`invasion of privacy.” Id.
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`The Seventh Circuit also disagreed with the way the Salcedo panel
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`applied Spokeo. As Judge Barrett explained in the court’s decision, the
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`instruction to evaluate harms recognized at common law requires that
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`courts “look for a ‘close relationship’ in kind, not degree.” Gadelhak, 950
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`F.3d at 462 (quoting Spokeo, 578 U.S. at 341). “A few unwanted
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`automated text messages may be too minor an annoyance to be actionable
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`at common law. But such texts nevertheless pose the same kind of harm
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`that common law courts recognize—a concrete harm that Congress has
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`chosen to make legally cognizable.” Id. at 463. It agreed with the
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`decisions in Van Patten and Melito “that unwanted text messages can
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`constitute a concrete injury-in-fact for Article III purposes.” Id.
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`The Fifth Circuit joined the majority view in Cranor v. 5 Star
`
`Nutrition, LLC, 998 F.3d 686 (5th Cir. 2021), holding that standing exists
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`to pursue a claim based on receipt of an unlawful text message. It
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`observed that under similar facts, the Second, Third, Seventh, and Ninth
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`Circuits had all “reached the same conclusion: Telemarketing text
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`messages present the precise harm and infringe the same privacy
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`10
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 19 of 51
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`interests Congress sought to protect in enacting the TCPA.” Id. at 690
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`(cleaned up). The Fifth Circuit rejected the Salcedo panel’s view that
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`Congress enacted the TCPA to remedy harms solely related to residential
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`calls and that harms from unwanted cellular messages were somehow
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`“qualitatively different.” Cranor, 998 F.3d at 690.
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`“First, the TCPA expressly covers cellular phones” and “includes
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`text messaging in its prohibitions on transmitting false caller ID
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`information.” Cranor, 998 F.3d at 690. Thus, “it would make little sense
`
`to prohibit telemarketing to mobile devices designed for use outside the
`
`home” if Congress were concerned only with “nuisances in the home.” Id.
`
`at 691. Second, “the TCPA addresses ‘nuisance and invasion of privacy’
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`in a variety of other non-residential contexts.” Id. Third, Congress
`
`authorized the FCC to exempt calls that are not a nuisance or privacy
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`invasion, and “[n]o part of this delegation limits the FCC to considering
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`nuisance and privacy only in the home.” Id.
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`The Fifth Circuit also took issue with the Salcedo panel’s historical
`
`view that a single unwanted text message is “the kind of fleeting
`
`infraction upon personal property that tort law has resisted addressing.”
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`Cranor, 998 F.3d at 692 (quoting Salcedo, 936 F.3d at 1172). Among other
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`
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`11
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 20 of 51
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`things, the court noted that the Salcedo decision never addressed public
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`nuisance. Id. at 693. And it highlighted two other significant mistakes in
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`the reasoning laid out in Salcedo.
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`“First, Salcedo’s view of trespass to chattels is substantially
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`narrower than the scope of that action at common law.” Cranor, 998 F.3d
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`at 693. The Salcedo court was led astray by “mistak[ing] the twentieth-
`
`century Restatement for the eighteenth-century common law.” Id.
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`Second, echoing concerns (now) Justice Amy Coney Barrett had made in
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`Gadelhak, the Fifth Circuit said that “Salcedo’s focus on the
`
`substantiality of the harm in receiving a single text misunderstands
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`Spokeo.” Id. at 693. A proper historical inquiry focuses “on the types of
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`harms protected at common law, not the precise point at which those
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`harms become actionable.” Id. (quoting Krakauer v. Dish Network, LLC,
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`925 F.3d 643, 654 (4th Cir. 2019)).
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`In short, no federal appellate court has endorsed Salcedo. The
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`Eleventh Circuit stands alone in rejecting subject matter jurisdiction
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`based on receipt of a text message, making it exceptionally important for
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`this Court to reconsider that issue en banc. See Fed. R. App. P.
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`35(b)(1)(B).
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 21 of 51
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`II. THE STANDING ANALYSIS IN SALCEDO RUNS COUNTER
`TO OTHER DECISIONS FROM THIS CIRCUIT.
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`This Court in Sarris held there is standing to pursue TCPA claims
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`because receipt of a single junk fax briefly ties up the fax machine, even
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`if there is no proof a fax was ever printed: “This occupation of Plaintiff’s
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`fax machine is among the injuries intended to be prevented by the statute
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`and is sufficiently personal or particularized … to provide standing.”
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`Sarris, 781 F.3d at 1252. Similarly, in Florence Endocrine Clinic, PLLC
`
`v. Arriva Medical, LLC, 858 F.3d 1362 (11th Cir. 2017), this Court held
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`“the clinic established that it suffered a concrete injury” because “the
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`clinic’s fax machine was occupied and rendered unavailable for legitimate
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`business while processing the unsolicited fax.” Id. at 1366.
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`The Salcedo panel acknowledged those TCPA junk fax cases but
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`deemed them “inapplicable” because intangible costs imposed by an
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`unwanted text purportedly “differ in kind” from a fax message, in that a
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`“cell phone user can continue to use all the device’s functions, including
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`receiving other messages, while it is receiving a text message.” Salcedo,
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`936 F.3d at 1168. But that reasoning fails. There is no legitimate basis
`
`why Article III of the United States Constitution would permit individual
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`suits based on receipt of a single junk fax but bar a text message claim.
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`
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 22 of 51
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`Indeed, if anything, a junk text message can be more injurious than
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`a junk fax. Texts are now used for things like schools contacting parents
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`and healthcare providers communicating test results. A person rushing
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`to school to pick up a sick child or awaiting a COVID-19 test result before
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`boarding a plane would not mute his phone, and getting a spam text
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`would be worse than a single unwanted fax printing on the recipient’s fax
`
`machine back in the office.
`
`The Salcedo decision runs into a similar problem with circuit
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`precedent addressing standing for TCPA claims based on an unwanted
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`call. This Court in Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d
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`1301 (11th Cir. 2020), held that “receipt of more than one unwanted
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`telemarketing call” meets the “concrete injury” requirement for
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`standing—even where two plaintiffs sue after each received just one call.
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`Id. at 1305–06 (quoting Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1273
`
`(2019)).
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`The panel decision in this case acknowledged the Glasser decision
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`in a footnote, stating this Court has “been less than a model of clarity in
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`Cordoba and Glasser for purposes of Article III analysis.” Slip. Op. at 18
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`n.14. And the decision recognizes that “[w]e have a problem here.” Id. at
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`
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`14
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 23 of 51
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`19 n.14. “The difference between Cordoba and Glasser and our case may
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`present the need to reexamine Glasser in the future because it may affect
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`both the injury-in-fact requirement and the causation analysis.” Id.
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`Because the decision in Glasser predated the historical analysis now
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`called for under Spokeo, the panel decision declared Glasser “suspect on
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`that ground alone.” Id.
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`On the contrary, time has revealed the Salcedo decision as the
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`suspect one. Not only does it create tension with other circuit decisions
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`addressing standing in similar contexts but it puts this circuit at odds
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`with all others with respect to text message claims. This Court can set
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`things straight by granting this petition for en banc review.
`
`III. THE PANEL DECISION CONFLICTS WITH SUPREME
`COURT JURISPRUDENCE ON REPRESENTATIONAL
`STANDING.
`
`The Salcedo decision purported to embrace Spokeo’s instruction
`
`that standing requires “a ‘close relationship’ to traditionally redressable
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`harm.” Salcedo, 936 F.3d at 1172. As the Fifth Circuit observed in
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`Cranor, however, the Salcedo panel neglected to consider common law
`
`causes of action available to address a public nuisance. Cranor, 998 F.3d
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`at 693. There is likewise a “well-established exception” for qui tam
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`
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`15
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 24 of 51
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`actions that allow “private plaintiffs to sue in the government’s name for
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`the violation of a public right,” as Justice Thomas observed in his
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`concurrence in Spokeo, 578 U.S. at 345.
`
`In Vermont Agency of Natural Resources v. United States ex rel.
`
`Stevens, 529 U.S. 765 (2000), the Supreme Court held that a plaintiff has
`
`standing to assert a qui tam claim on behalf of the government where
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`Congress assigns the right to do so.1 “Although we have never expressly
`
`recognized ‘representational standing’ on the part of assignees, we have
`
`routinely entertained their suits.” Id. at 774–75 (citing cases). The Court
`
`recounted the history of such actions going back to the 13th century,
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`including “informer statutes” that permit the plaintiff to share in
`
`recovery as a bounty, which the First Congress employed in several
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`different settings. Id. at 776 & n.5.
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`The instant case involves an express right of action by Congress to
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`pursue claims based on certain insidious telemarketing practices that
`
`cause harm to public phone and data networks. As the Supreme Court’s
`
`
`1 “Qui tam is short for the Latin phrase qui tam pro domino rege pro
`se ipso in hac parte sequitur, which means ‘who pursues this action
`on our Lord the King’s behalf as well as his own.’ The phrase dates
`from at least the time of Blackstone. See 3 W. Blackstone,
`Commentaries, *160.” Ex rel. Stevens, 529 U.S. at 768 n.1.
`
`
`
`16
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 25 of 51
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`decision in ex rel. Stevens makes plain, Congress is well within
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`constitutional bounds assigning the right to pursue claims to individuals
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`who encountered the problem firsthand. The Salcedo panel’s failure to
`
`consider those actions in its analysis has led this Circuit astray, and en
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`banc review is necessary to correct course.
`
`CONCLUSION
`
`The standing issue at the heart of the panel’s ruling presents an
`
`issue of exceptional importance that warrants en banc review. The
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`decision in Salcedo frustrates the ability of Congress to authorize suit not
`
`only to protect individuals from harm but also to safeguard public rights
`
`from interference. This Court should overrule Salcedo and hold that all
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`class members have standing to pursue their TCPA claims, consistent
`
`with congressional intent and consistent with the rulings from all other
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`circuits to consider the issue. This Court should therefore affirm the
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`District Court’s order certifying the class and approving the proposed
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`settlement.
`
`
`
`
`
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 26 of 51
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`August 18, 2022
`
`Respectfully submitted,
`
`Earl P. Underwood, Jr.
`/s/
`UNDERWOOD & RIEMER, P.C.
`Earl P. Underwood, Jr.
`21 South Section Street
`Fairhope, AL 36532
`Tel: (251) 990-5558
`Fax: (251) 990-0626
`epunderwood@alalaw.com
`Counsel for Plaintiffs-Appellees
`
`CERTIFICATE OF COMPLIANCE
`
`This brief complies with the type-volume limitations of Fed. R. App.
`
`P. 28(b), Fed. R. App. P. 32(a)(7)(B) and Eleventh Circuit Rule 28-1 and
`
`32 because this brief contains 3,233 words, excluding the parts of the
`
`brief exempted by Eleventh Circuit Rule 32-4, as counted by Microsoft
`
`Word.
`
`This brief complies with the typeface requirements of Fed. R. App.
`
`P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
`
`because the brief has been prepared in a proportionally spaced typeface
`
`using Microsoft Word in 14 point Century SchoolBook font and is double
`
`spaced.
`
`18
`
`

`

`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 27 of 51
`
`Respectfully submitted,
`
`Earl P. Underwood, Jr.
`/s/
`UNDERWOOD & RIEMER, P.C.
`Earl P. Underwood, Jr.
`21 South Section Street
`Fairhope, AL 36532
`Tel: (251) 990-5558
`Fax: (251) 990-0626
`epunderwood@alalaw.com
`
`Counsel for Plaintiffs-Appellees
`
`19
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`USCA11 Case: 21-10199 Date Filed: 08/18/2022 Page: 28 of 51
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`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on August 18, 2022, I electronically
`
`filed the foregoing with the Clerk of the Court for the United States Court