USCA11 Case: 21-10199 Date Filed: 07/27/2022 Page: 1 of 20
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`[PUBLISH]
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 21-10199
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`____________________
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`
`SUSAN DRAZEN,
`on behalf of herself and other persons similarly situated,
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`Godaddy.com, LLC,
`a Delaware Limited Liability Company,
`
`versus
`MR. JUAN ENRIQUE PINTO,
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`
` Plaintiff-Appellee,
`
` Defendant-Appellee,
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` Movant-Appellant.
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`Opinion of the Court
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`21-10199
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`____________________
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`Appeal from the United States District Court
`for the Southern District of Alabama
`D.C. Docket No. 1:19-cv-00563-KD-B
`____________________
`
`Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.
`TJOFLAT, Circuit Judge:
`We have in this case an argument over the meaning of cou-
`pon settlements. But, because there is an Article III standing prob-
`lem with the class, we must vacate the District Court’s approval of
`class certification and settlement in this case and remand for the
`opportunity to revise the class definition.
`I.
`
`In August 2019, Susan Drazen filed a complaint against Go-
`
`Daddy.com, LLC (“GoDaddy”) in the Southern District of Ala-
`bama alleging that GoDaddy had violated the Telephone Con-
`sumer Protection Act of 1991 (“TCPA”) when it allegedly called
`and texted Drazen solely to market its services and products
`through a prohibited automatic telephone dialing system. See 47
`U.S.C. § 227(a)(1), (b)(1)(A). Her case was consolidated with an-
`other case that had been litigated by Jason Bennett in the District
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`of Arizona,1 Case No. 2:16-cv-03908 (D. Ariz. 2016), and a third re-
`lated action filed by John Herrick was “incorporated into and re-
`solved” by the resolution of this case, Case No. 2:16-cv-00254 (D.
`Ariz. 2016).2
`
`Drazen and the plaintiffs in the two other related cases, Ben-
`nett and Herrick, purported to bring a class action on behalf of sim-
`ilarly situated individuals. After negotiating with GoDaddy, the
`three plaintiffs submitted a proposed class settlement agreement to
`the District Court. The class was defined as follows:
`(a) All persons within the United States who received
`a call or text message to his or her cellular tele-
`phone from Defendant from November 4, 2014
`through December 31, 2016.
`
`(b) Excluded from the term “Settlement Class” are:
`(1) the trial judges presiding over the Actions; (2)
`Defendant, as well as any parent, subsidiary, affili-
`ate or control person of Defendant, and the offic-
`ers, directors, agents, servants or employees of
`Defendant; (3) the immediate family of any such
`person(s); (4) any Settlement Class Member who
`
`
`1 Bennett and Drazen filed a joint motion to transfer venue for Bennett’s case
`to the Southern District of Alabama and to consolidate their cases. The Dis-
`trict Court granted that motion.
`2 Bennett alleged that he received unsolicited calls from GoDaddy on his cell-
`phone. Herrick alleged that he received promotional text messaging from Go-
`Daddy on his cellphone.
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`timely and properly opts out of the settlement;
`and (5) Class Counsel, their employees, and their
`immediate family.
`
` The proposed settlement was structured so that GoDaddy would
`make available $35 million in settlement funds for claims that were
`approved and for settlement costs. There were two compensation
`options for class members, both subject to pro rata reduction in the
`event that too many class members opted into the class. Class
`members could either receive $35 in cash or a $150 voucher to be
`used exclusively at GoDaddy. Based on the proposed settlement,
`class counsel agreed to ask for no more than 30% in attorneys’ fees
`in addition to reimbursement of reasonable litigation costs and ex-
`penses. Class counsel also agreed to ask the District Court to award
`each named plaintiff $5,000, which GoDaddy did not oppose.
`
`In response to this motion, the District Court ordered brief-
`
`ing on the application of Salcedo v. Hanna, 936 F.3d 1162, 1168
`(11th Cir. 2019), to the class as proposed in the settlement agree-
`ment. We held in Salcedo that receipt of a single unwanted text
`message was not a sufficiently concrete injury to give rise to Article
`III standing, Salcedo, 936 F.3d at 1168, and the proposed class defi-
`nition included individuals who received only one text message
`from GoDaddy. In their briefing, the parties put forth a new class
`definition:
`(a) All persons within the United States to whom, from
`November 4, 2014 through December 31, 2016, De-
`fendant placed a voice or text message call to their
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`cellular telephone pursuant to an outbound cam-
`paign facilitated by the web-based software applica-
`tion used by 3Seventy, Inc., or the software pro-
`grams and platforms that comprise the Cisco Uni-
`fied Communications Manager.
`
`(b) Excluded from the term “Settlement Class” are (1)
`the trial judges presiding over the Actions; (2) De-
`fendant, as well as any parent, subsidiary, affiliate or
`control person of Defendant, and the officers, direc-
`tors, agents, servants or employees of Defendant; (3)
`the immediate family of any such person(s); (4) any
`Settlement Class Member who timely and properly
`opts out of the settlement; and (5) Class Counsel,
`their employees, and their immediate family.
`
`After considering the briefing of the parties, the District
`
`Court, citing our decision in Cordoba v. DIRECTV, LLC, 942 F.3d
`1259, 1273 (11th Cir. 2019), determined that only the named plain-
`tiffs must have standing. So, according to the District Court, the
`standing problem could be resolved by removing Herrick, the text-
`message only recipient, from being a named plaintiff. As to “absent
`class members,” who may have only received a single text message,
`the District Court noted that these individuals would only make up
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`about seven percent of the class based on GoDaddy’s representa-
`tions.3
`
`The District Court determined that “even though some of
`the included class members would not have a viable claim in the
`Eleventh Circuit, they do have a viable claim in their respective
`Circuit [because of a circuit split]. Thus, GoDaddy is entitled to set-
`tle those claims in this class action although this Court would find
`them meritless had they been brought individually in the Eleventh
`Circuit.” In other words, the District Court allowed text-message
`only recipients to remain in the class, even though they lacked Ar-
`ticle III standing under our standards.
`
`After conducting a Rule 23(a) analysis for numerosity, com-
`
`monality, typicality, and adequacy, and a Rule 23(b)(3) analysis for
`predominance, the District Court approved certification of the
`class for purposes of settlement in accordance with the proposed
`settlement agreement, on the condition that Herrick be removed
`as a named plaintiff.4 In response, the parties submitted an
`amended proposed settlement agreement removing Herrick as a
`class representative. On June 9, 2020, the District Court then
`
`
`3 Based on GoDaddy’s analysis, 91,000 individuals out of the approximately
`1.26 million class members received only a single text message from Go-
`Daddy.
`4 The District Court did not conduct an analysis of the Rule 23(e)(2) factors,
`which is mandatory when “a class [is] proposed to be certified for purposes of
`settlement.” Fed. R. Civ. P. 23(e).
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`certified the class for settlement with that change and preliminarily
`approved the settlement agreement, requiring any motions for at-
`torneys’ fees to be filed by July 24, 2020, any objections within the
`class to attorneys’ fees be filed by July 31, 2020, and any objectors
`to object to the settlement itself by August 31, 2020.
`
`Next, on July 24, 2020, class counsel moved for attorneys’
`fees equal to 30% of the total settlement fund of $35 million, which
`came out to $10.5 million, and $105,410.51 in costs. On August 11,
`2020, the District Court approved class counsel receiving 25% of
`the common fund, $8.75 million, in attorneys’ fees since “the issues
`in this case were not complex” and the “average benchmark” was
`25%. The District Court also granted the $105,410.51 in costs and
`expenses. Finally, the District Court granted $5,000 to Drazen,
`Bennett, and Herrick for their services as settlement class mem-
`bers.
`
`Then, on August 31, 2020, Juan Pinto objected to the settle-
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`ment. He explained that while the class notice had identified an
`objection deadline of August 31, 2020, the District Court had
`awarded attorneys’ fees on August 11, 2020, twenty days ahead of
`the objection deadline. For our purposes, his most important ar-
`gument is that this settlement was subject to the Class Action Fair-
`ness Act (“CAFA”) because it was a coupon settlement under 28
`U.S.C. § 1712(e).5 In other words, because GoDaddy vouchers
`
`5 Pinto also argued that the class notice violated due process. He does not
`raise that argument before us, so we won’t consider it further here.
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`were a part of the settlement, Pinto believed that these vouchers
`were coupons under CAFA.6 The punchline is that if the vouchers
`are coupons under CAFA then the attorneys’ fees for class counsel
`in this case would be subject to heightened judicial scrutiny and
`would have to be based on the “value to class members of the cou-
`pons that are redeemed.” 28 U.S.C. § 1712(a), (e). In other words,
`basing attorneys’ fees on the common fund value of $35 million
`would be out the window, and a more complicated calculation
`based on coupon redemption and the cash settlement fund would
`take its place. In any event, attorneys’ fees would likely be lower
`than what the District Court had calculated under its original
`method.7
`
`
`6 See 28 U.S.C. § 1712(a) (“If a proposed settlement in a class action provides
`for a recovery of coupons to a class member, the portion of any attorney’s fee
`award to class counsel that is attributable to the award of the coupons shall be
`based on the value to class members of the coupons that are redeemed.”); id.
`§ 1712(e) (“In a proposed settlement under which class members would be
`awarded coupons, the court may approve the proposed settlement only after
`a hearing to determine whether, and making a written finding that, the settle-
`ment is fair, reasonable, and adequate for class members. The court, in its dis-
`cretion, may also require that a proposed settlement agreement provide for
`the distribution of a portion of the value of unclaimed coupons to 1 or more
`charitable or governmental organizations, as agreed to by the parties. The dis-
`tribution and redemption of any proceeds under this subsection shall not be
`used to calculate attorneys’ fees under this section.”).
`7 Pinto argued that only the redeemed coupons could be used for a percent-
`age-based fee and that a lodestar could be used for the cash portion of the set-
`tlement.
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`In response to Pinto’s argument that the District Court had
`
`prematurely awarded attorneys’ fees, the District Court amended
`its attorneys’ fees order to make all its previous awards “subject to
`a final evaluation and review of any objections and at the final ap-
`proval hearing.” The District Court did not alter the substance of
`the awards at this time.
`
`After receiving further briefing from both the parties and
`Pinto, the District Court issued its final order, incorporating its ear-
`lier findings that the class met the standards of Rule 23(a) and Rule
`23(b)(3). It noted that there were 1,237,296 class members in the
`settlement and that as of October 22, 2020, there were only 24,059
`completed claims, 11,662 for cash and 12,396 for vouchers. The
`District Court addressed Pinto’s objection, deciding that the settle-
`ment was not a coupon settlement under CAFA. However, the
`District Court did decide to reduce attorneys’ fees to 20% of the
`common fund, or $7,000,000, because “the results obtained for the
`plaintiffs d[id] not justify an award at the high end of the bench-
`mark.”8 And, finally, the District Court awarded the $105,410.51
`in costs that class counsel had requested through the plaintiffs.
`
`
`8 Separately, the District Court also disapproved the $5,000 awards for the lead
`plaintiffs since our decision in Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1260
`(11th Cir. 2020), forbade that practice.
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`And, with that, the class action settlement received final approval
`with attorneys’ fees and costs. Pinto timely appealed.9
`II.
`
`We review the District Court’s order granting final approval
`
`to the settlement for abuse of discretion. Ault v. Walt Disney
`World Co., 692 F.3d 1212, 1216 (11th Cir. 2012). We review ques-
`tions of statutory interpretation, like the application of CAFA to
`coupon settlements, de novo. United States v. Lumley, 135 F.3d
`758, 759–60 (11th Cir. 1998). And we review de novo our own sub-
`ject-matter jurisdiction. U.S. Const. art. III, § 2;Williams v. Chat-
`man, 510 F.3d 1290, 1293 (11th Cir. 2007) (“Federal courts are obli-
`gated to inquire into subject-matter jurisdiction sua sponte when-
`ever it may be lacking.” (internal citation and quotation marks
`omitted)).
`
`III.
`
`After that complicated procedural history, we start with the
`
`basic question of whether we have subject-matter jurisdiction in
`this case. The parties did not brief the issue before us, apparently
`assuming the class definition passed Article III standing muster.
`Not to hide the ball, we hold that the class definition does not meet
`Article III standing requirements, so we vacate the District Court’s
`
`
`9 Pinto and the parties submitted to the District Court a proposed settlement
`after Pinto’s appeal, which the District Court denied.
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`decision to grant final approval of the settlement and remand to
`give the parties an opportunity to revise the class definition.
`Our starting point is the Supreme Court’s decision in Frank
`
`v. Gaos, 139 S. Ct. 1041 (2019). There, five class members objected
`to the district court’s preliminary approval of a settlement because
`the settlement agreement only provided for cy pres relief. Gaos,
`139 S. Ct. at 1045. After a hearing on the matter, the district court
`gave the settlement final approval, and the class members appealed
`to the Ninth Circuit. Id. After the parties had briefed the merits
`issue of cy pres relief before the Ninth Circuit but before the Ninth
`Circuit issued a decision, the Supreme Court decided Spokeo, Inc.
`v. Robins, 578 U.S. 330, 136 S. Ct. 1540 (2016). In Spokeo, the Su-
`preme Court held that a plaintiff does not automatically satisfy Ar-
`ticle III standing requirements, just because “a statute grants a per-
`son a statutory right and purports to authorize that person to sue
`to vindicate that right.”10 Gaos, 139 S. Ct. at 1045 (quoting Spokeo,
`578 U.S. at 341, 136 S. Ct. at 1549). The Ninth Circuit affirmed
`settlement of the class action on the merits without addressing the
`
`
`10 Article III standing has three components: 1) injury-in-fact that is concrete
`and particularized and actual and imminent, 2) causation, and 3) redressability.
`Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136–37 (1992).
`Spokeo was specifically concerned with the concreteness prong of the injury-
`in-fact inquiry. Spokeo, 578 U.S. at 339, 136 S. Ct. at 1548. In Spokeo, the
`Supreme Court explained that plaintiffs must still demonstrate a concrete in-
`jury, even when a plaintiff has alleged a statutory violation. Id. at 341, 136 S.
`Ct. at 1549. In other words, a statutory violation does not necessarily meet
`the requirements of Article III for standing purposes.
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`potential Article III standing problem, and the objectors appealed
`to the Supreme Court. Id.
`
`The question before the Supreme Court was “whether a
`class action settlement that provides a cy pres award but no direct
`relief to class members satisfies the requirement that a settlement
`binding class members be ‘fair, reasonable, and adequate.’ Fed.
`Rule Civ. Proc. 23(e)(2).” Id. But rather than address the certified
`question, the Supreme Court evaluated the Article III standing is-
`sue and explained that Article III’s standing requirements “extend[]
`to court approval of proposed class action settlements.” Id. at 1046.
`The Supreme Court explained that while ordinarily in non-class lit-
`igation parties may settle whenever they want without court inter-
`vention, Fed. R. Civ. P. 41(a)(1)(A), not so in class litigation, where
`a settlement may only be finalized with district court approval,
`Fed. R. Civ. P. 23(e). Gaos, 139 S. Ct. at 1046. And, the Gaos court
`explained, “federal courts lack jurisdiction if no named plaintiff has
`standing.” Id. The Supreme Court vacated the settlement and re-
`manded the case in order for the lower courts to consider the stand-
`ing issue “in light of Spokeo” because “[r]esolution of the standing
`question should take place in the District Court or the Ninth Cir-
`cuit in the first instance.” Id.
`From Gaos, we take the following: even at the settlement
`stage of a class action, we must assure ourselves that we have Arti-
`cle III standing at every stage of the litigation. U.S. Const. art. III,
`§ 2; United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019)
`(“To have a case or controversy, a litigant must establish that he
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`Opinion of the Court
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`has standing, which must exist throughout all stages of litigation.”);
`see TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (evaluating
`Article III standing of plaintiffs on appeal after a full trial below).
`That requirement is derived from Article III as well as the unique
`nature of class action settlements as laid out in Rule 23(e), which
`require court approval.
`Beyond the holding in Gaos, we have another lodestar prin-
`
`ciple that guides our analysis, and that principle is drawn from
`TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). There are two
`key takeaways from TransUnion for our purposes here: 1) To sat-
`isfy the concrete injury requirement for standing, a plaintiff alleg-
`ing a statutory violation must demonstrate that history and the
`judgment of Congress support a conclusion that there is Article III
`standing; 2) “Every class member must have Article III standing in
`order to recover individual damages.” TransUnion, 141 S. Ct. at
`2204–05, 2208. The first point is mainly a refining and reiteration
`of Spokeo. See Spokeo, 578 U.S. at 340–41, 136 S. Ct. at 1549. The
`second requires a bit more discussion.
`IV.
`
`To understand how TransUnion’s rule that every class
`member must have Article III standing to recover damages fits into
`this case, we must return to the record below. When the District
`Court certified the class under that definition, it was operating un-
`der two principles. First, citing Cordoba, it said that only the
`named plaintiff must have standing. Cordoba, 942 F.3d at 1273.
`Second, citing the Fifth Circuit’s decision in In re Deepwater
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`Horizon, the District Court decided that even if there were plain-
`tiffs in the class definition who did not have standing, because they
`might have standing in another circuit, we should allow them to
`remain a part of the class here because it is a nationwide class ac-
`tion. See In re Deepwater Horizon, 739 F.3d 790, 807 (5th Cir.
`2014). For instance, the District Court pointed out that we held in
`Salcedo v. Hanna that a plaintiff has not suffered a concrete injury
`for Article III standing purposes when she has received a single un-
`wanted text message. See Salcedo v. Hanna, 936 F.3d 1163, 1172
`(11th Cir. 2019). The District Court contrasted our holding with
`that of the Ninth Circuit in Van Patten v. Vertical Fitness Group,
`LLC, 847 F.3d 1037, 1043 (9th Cir. 2017), which it interpreted as
`holding that a single unwanted text message is sufficient to estab-
`lish a concrete injury for Article III standing purposes.
`
`So, the District Court conditioned certification on the re-
`moval of the text-message-only recipient, Herrick, as a named class
`representative to comply with Cordoba. And the District Court
`reasoned that the class definition could remain as it was, because
`the plaintiffs in the class who had only received one unwanted text
`message would have standing in another circuit to bring suit.
`
`Our problem in this case is that the District Court’s granting
`of this class definition runs headlong into Cordoba and TransUn-
`ion.11 Starting with the District Court’s use of Cordoba, we
`
`
`11 Of course, we do not fault the District Court for failing to be clairvoyant.
`The District Court issued its grant of certification of the class for settlement
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`acknowledge that Cordoba says that “[f]or a class to be certified,
`[only] the named plaintiff must have standing.” Cordoba, 942 F.3d
`at 1267. But Cordoba also counsels that “whether absent class
`members can establish standing may be exceedingly relevant to the
`class certification analysis required by Federal Rule of Civil Proce-
`dure 23,” and “at some time in the course of the litigation the dis-
`trict court will have to determine whether each of the absent class
`members has standing before they could be granted any relief.” Id.
`at 1273, 1274. So, the Cordoba court located the standing analysis
`of unnamed class members at the certification stage in Rule 23 ra-
`ther than as a standalone standing requirement under Article III of
`the Constitution itself. Regardless of whether standing presents it-
`self as an inquiry under Rule 23 or Article III for certification pur-
`poses, TransUnion has affirmed the reasoning of Cordoba. To re-
`cover individual damages, all plaintiffs within the class definition
`must have standing. TransUnion, 141 S. Ct. at 2208. Here, the
`District Court’s certification of the class was only pursuant to a set-
`tlement. So, the Cordoba inquiry into standing for certification
`purposes through Rule 23 merges with the TransUnion analysis of
`damages recovery to lead us to the following conclusion: when a
`class seeks certification for the sole purpose of a damages
`
`and preliminary approval of the class settlement on June 9, 2020, a little over
`a year before the Supreme Court’s decision in TransUnion, and its final order
`approving class settlement on December 23, 2020, still six months before
`TransUnion was decided. But we are bound to now apply the Supreme
`Court’s decision in TransUnion in this appeal. See generally United States v.
`Campbell, 26 F.4th 860 (11th Cir. 2022) (en banc).
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`settlement under Rule 23(e), the class definition must be limited to
`those individuals who have Article III standing. If every plaintiff
`within the class definition in the class action in TransUnion had to
`have Article III standing to recover damages after trial, logically so
`too must be the case with a court-approved class action settlement.
`
`Before turning to the standing analysis as applied to the
`plaintiffs in this case, we address the District Court’s second guid-
`ing principle that unnamed plaintiffs with no standing in our circuit
`may be entertained as part of the nationwide class because they
`have might standing in another circuit. The case the District Court
`cites for this proposition, In re Deepwater Horizon, says nothing
`of the sort. In that case, the Fifth Circuit declined to choose be-
`tween two different methods of evaluating class standing under Ar-
`ticle III—one based on the named plaintiffs and the other based on
`the class definition—because the class at issue met both standards.
`See In re Deepwater Horizon, 739 F.3d at 803 (“As contemplated
`by the Class Definition, therefore, the class contains only persons
`and entities that possess Article III standing.”). At most, In re Deep-
`water Horizon stands for the proposition that absent class mem-
`bers need not “prove their claims prior to settlement under Rule
`23(e).”12 Id. at 807. Nowhere does that case suggest that we check
`Article III standing at the door when dealing with a class action.
`
`
`12 The District Court seems to have conflated standing with merits when it
`said that “the class includes absent members who received only one text but
`would have a viable claim in their respective Circuit. So the issue is whether
`this Court can certify a class wide settlement that includes claims that are
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`TransUnion says that we can’t award damages to plaintiffs
`who do not have Article III standing. And Article III standing goes
`to the heart of our jurisdiction to hear cases in the first place. We
`cannot, therefore, check our Article III requirements at the door of
`the class action. Any class definition that includes members who
`would never have standing under our precedent is a class definition
`that cannot stand. With that background, we turn to the standing
`analysis of the actual plaintiffs in this case.
`
`V.
`The District Court certified the class for settlement with the
`
`following class definition:
`(a) All persons within the United States to whom, from
`November 4, 2014 through December 31, 2016, De-
`fendant placed a voice or text message call to their
`cellular telephone pursuant to an outbound cam-
`paign facilitated by the web-based software applica-
`tion used by 3Seventy, Inc., or the software pro-
`grams and platforms that comprise the Cisco Uni-
`fied Communications Manager.
`
`So, the universe of plaintiffs under this definition includes any indi-
`vidual who received a text message or phone call on their cellphone
`
`
`viable in some circuits but not in others . . . . [E]ven though some of the in-
`cluded class members would not have a viable claim in the Eleventh Circuit,
`they do have a viable claim in their respective Circuit.” Article III standing
`does not go to the merits or viability of the claim itself but rather to our juris-
`diction to hear the case.
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`from GoDaddy in the specified period. As discussed above, under
`Salcedo, we have said that a single unwanted text message is not
`sufficient to meet the concrete injury requirement for standing. So,
`the class definition cannot stand to the extent that it allows stand-
`ing for individuals who received a single text message from Go-
`Daddy. Otherwise, individuals without standing would be receiv-
`ing what is effectively damages in violation of TransUnion.
`
`The more difficult question is whether individuals who have
`received a single cellphone call also have standing.13 See Salcedo,
`936 F.3d at 1170 (“[C]ell phone calls may involve less of an intru-
`sion than calls to a home phone.”). Without the benefit of
`TransUnion, we held in Glasser v. Hilton Grand Vacations Com-
`pany, LLC, addressing the same statute as the one in this case, that
`“receipt of more than one unwanted telemarketing call” was suffi-
`cient to meet the “concrete injury” requirement for Article III
`standing. Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301,
`1306 (11th Cir. 2020) (quoting Cordoba, 942 F.3d at 1270 (“The re-
`ceipt of more than one unwanted telemarketing call made in viola-
`tion of the provisions enumerated in the TCPA is a concrete injury
`that meets the minimum requirements of Article III standing.”)).14
`
`
`13 We note that the named plaintiffs Bennett and Drazen alleged receiving
`multiple telephone calls, which is sufficiently similar to the tort of intrusion
`upon seclusion to meet the minimum requirements of Article III standing un-
`der our current case law. Cordoba, 942 F.3d at 1270; but see infra n.14.
`14 As a side note, we have been less than a model of clarity in Cordoba and
`Glasser for purposes of Article III standing analysis. Cordoba involved an FCC
`
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`regulation promulgated pursuant to the TCPA that “requir[ed] telemarketers
`to maintain lists of individuals who have asked not to receive calls from par-
`ticular callers – so-called ‘internal do-not-call lists.’” Cordoba, 942 F.3d at 1264.
`And the only plaintiffs in the class action in that case who had standing were
`those who received telemarketing calls after they had asked not to be called.
`Id. at 1272. Glasser, which dealt with the same statute as the one in our case,
`involved two individuals who alleged that they had received calls from auto-
`matic dialing systems in violation of the TCPA. Glasser, 948 F.3d at 1305–06.
`There, we said that because Cordoba had held that “more than one unwanted
`telemarketing call” was sufficient to confer standing, the plaintiffs in Glasser
`had standing. Id. at 1306.
`
`We have a problem here. “Unwanted” in Cordoba had a specific
`meaning—individuals who were called after asking not to be called. “Un-
`wanted” in the context of the statute at issue in our case and in Glasser refers
`to the fact that individuals, though never asking not to be called, were called
`by allegedly prohibited means under the TCPA—automatic telephone dialing
`systems. So, to us, the standing analysis in Cordoba and the standing analysis
`in Glasser and our case may not necessarily be the same. In Cordoba, people
`asked not to be called—period. In Glasser and in our case, the individuals are
`not complaining about the fact they were called. They are complaining about
`the fact that the automatic telephone dialing system did the calling. In other
`words, the injury is not the call but rather the dialing system used, and it is not
`clear that GoDaddy’s compliance with the statute would have prevented the
`plaintiffs from being called. The difference between Cordoba and Glasser and
`our case may present the need to reexamine Glasser in the future because it
`may affect both the injury-in-fact requirement and the causation analysis. At
`the very least, Cordoba and Glasser were decided pre-TransUnion, and under
`TransUnion plaintiffs have the burden of establishing Article III standing for
`statutory violations by alleging facts that would allow us to find a common-
`law analogue to the injury in question. See TransUnion, 141 S. Ct. at 2204.
`Glasser conducted no historical analysis and is suspect on that ground alone.
`
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`But we did not decide whether a single phone call to a cellphone
`was a concrete injury for Article III standing purposes. See Salcedo,
`936 F.3d at 1169, 1172 n.11 (“As we have discussed, both the judg-
`ment of Congress and history here reveal concerns about intru-
`sions into the privacy of the home and interferences with property
`that do not readily transfer to the context of cell phones.”).
`
`Because we have not received briefing on whether a single
`cellphone call is sufficient to meet the concrete injury requirement
`for Article III standing and because TransUnion has clarified that
`courts