Susan Drazen v. Juan Pinto

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10199

____________________

SUSAN DRAZEN,

on behalf of herself and other persons similarly situated,

Plaintiff-Appellee,

Godaddy.com, LLC,

a Delaware Limited Liability Company,

Defendant-Appellee,

versus

MR. JUAN ENRIQUE PINTO,

Movant-Appellant.

____________________

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2 Opinion of the Court 21-10199

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.

PER CURIAM:

After considering Drazen’s petition for panel rehearing, we

grant it, withdraw our previous opinion published at 101 F.4th

1223, and substitute this opinion for it. This opinion is the same as

our previous one, except that we clarify that the opinion of this

Court is delivered solely in Section III.C.iii, in which Judges Wil-

son, Branch, and Tjoflat joined. See Anders v. Hometown Mortg.

Servs., Inc., 346 F.3d 1024, 1031 n.6 (11th Cir. 2003) (explaining that

the “opinion of the Court” is that in which a majority of the partic-

ipating judges join).”

TJOFLAT, Circuit Judge:

The consolidated class actions involved in this appeal 1 were

1 The consolidated class actions are: Drazen v. GoDaddy.com, LLC (Drazen),

No. 1:19-cv-00563-KD-B (S.D. Ala. filed Aug. 21, 2019); Bennett v. GoDaddy.com,

LLC (Bennett), No. 1:20-cv-00094-KD-B (S.D. Ala. filed June 20, 2016); and Her-

rick v. GoDaddy.com LLC (Herrick), No. 2:16-cv-00254-DJH (D. Ariz. filed Jan.

28, 2016). On May 14, 2018, the Herrick District Court granted GoDaddy sum-

mary judgment. Herrick appealed to the U.S. Court of Appeals for the Ninth

Circuit. Herrick v. GoDaddy.com, LLC, No. 18-16048 (9th Cir. filed June 6, 2018).

The Ninth Circuit stayed the appeal pending the resolution of the instant

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21-10199 Opinion of the Court 3

brought under the Telephone Consumer Protection Act of 1991

(TCPA), 47 U.S.C. § 227. 2 The Plaintiffs alleged that

appeal. The District Court below “incorporated” Herrick into Drazen and Ben-

nett, and “resolved” Herrick’s claims against GoDaddy in the final judgment it

entered. Drazen v. Pinto (Drazen I), 41 F.4th 1354, 1356 (11th Cir. 2022), vacated

on reh’g en banc, 61 F.4th 1297 (11th Cir. 2023).

2 The TCPA creates a private cause of action. 47 U.S.C. § 227(b)(3) states:

A person or entity may, if otherwise permitted by the laws or

rules of court of a State, bring in an appropriate court of that

State—

(A) an action based on a violation of this subsection or

the regulations prescribed under this subsection to

enjoin such violation,

(B) an action to recover for actual monetary loss from

such a violation, or to receive $500 in damages for

each such violation, whichever is greater, or

(C) both such actions.

If the court finds that the defendant willfully or knowingly vi-

olated this subsection or the regulations prescribed under this

subsection, the court may, in its discretion, increase the

amount of the award to an amount equal to not more than 3

times the amount available under subparagraph (B) of this par-

agraph.

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4 Opinion of the Court 21-10199

GoDaddy.com,3 LLC violated the TCPA 4 by using an automatic

3 For those unfamiliar, GoDaddy, Inc. is a publicly traded multi-billion-dollar

U.S. corporation that markets itself as “the world’s largest services platform

for entrepreneurs around the globe.” See NASDAQ, GoDaddy Inc.,

https://www.nasdaq.com/market-activity/stocks/gddy (last visited Feb. 20,

2024) (listing a market cap of $15.4 billion); GoDaddy, About Us,

https://aboutus.godaddy.net/about-us/overview/default.aspx (last visited

Feb. 4, 2024). It offers a variety of services to its some twenty-one million

customers, which range from small noncommercial businesses to large corpo-

rations. See GoDaddy, Inc., Annual Report (Form 10-K) (Dec. 31,

2020). Those services include domain registration, website hosting, payment

processing, and marketing support.

4 Relevant here are the restrictions and prohibitions listed in 47 U.S.C.

§ 227(b)(1). Section 227(b)(1) states:

It shall be unlawful for any person within the United States, or

any person outside the United States if the recipient is within

the United States—

(A) to make any call (other than a call made for emergency

purposes or made with the prior express consent of the

called party) using any automatic telephone dialing

system or an artificial or prerecorded voice—

....

(iii) to any telephone number assigned to a paging

service, cellular telephone service, specialized

mobile radio service, or other radio common

carrier service, or any service for which the

called party is charged for the call, unless such

call is made solely to collect a debt owed to or

guaranteed by the United States.

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telephone dialing system (ATDS) 5 to make telephone calls or send

text messages to their telephone numbers or cell phones and the

numbers or phones of the class members they sought to represent.

The parties negotiated a settlement: GoDaddy would provide up

to $35 million to pay both class members’ claims and up to $10.5

million to their lawyers as attorney’s fees. Shortly after the Drazen

lawsuit was filed and the Bennett case was consolidated, the Plain-

tiffs moved the District Court pursuant to Rule 23(e)(1) to: (1) cer-

tify a Rule 23(b)(3) 6 class for settlement purposes, (2) approve

5 The TCPA defines an ATDS as “equipment which has the capacity—(A) to

store or produce telephone numbers to be called, using a random or sequential

number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).

6 Under Federal Rule of Civil Procedure 23(b)(3),

A class action may be maintained if Rule 23(a) is satisfied and

if:

....

(3) the court finds that the questions of law or fact common

to class members predominate over any questions affect-

ing only individual members, and that a class action is su-

perior to other available methods for fairly and efficiently

adjudicating the controversy. The matters pertinent to

these findings include:

(A) the class members’ interests in individually con-

trolling the prosecution or defense of separate ac-

tions;

(B) the extent and nature of any litigation concerning

the controversy already begun by or against class

members;

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6 Opinion of the Court 21-10199

preliminarily the settlement agreement the parties had negotiated,

and (3) approve their draft of the notice of proposed settlement to

be directed to the class pursuant to Rule 23(c)(2). 7

The District Court, presumably applying Rule 23(e)(1), de-

termined that the Plaintiffs had produced evidence sufficient to

show that the Court would likely approve the proposed settlement

and certify the class for purposes of judgment on the proposal. See

Fed. R. Civ. P. 23(e)(1). Thus, it granted the Plaintiffs’ motion and

appointed the Plaintiffs’ lawyers as Class Counsel. In its order

granting the motion, the District Court directed that notice of the

proposed settlement be given to the class pursuant to Rule

23(e)(1)(B) and that it contain the information specified in Rule

23(c)(2)(B)(i)–(vii). 8

(C) the desirability or undesirability of concentrating

the litigation of the claims in the particular forum;

and

(D) the likely difficulties in managing a class action.

7 Pls.’ Mot. at 13–15, Drazen, ECF No. 20.

8 In directing notice to the class, the District Court said:

“For any class certified under Rule 23(b)(3), the court must di-

rect to class members the best notice that is practicable under

the circumstances, including individualized notice to all mem-

bers who can be identified through reasonable effort.” Fed. R.

Civ. P. 23(c)(2)(B). Notice must contain information in plain,

easily understood language, and should include the nature of

the action, the class definition(s)[,] the claims, and the mem-

bers’ rights. Fed. R. Civ. P. 23(c)(2)(B)(i)–(vii).

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21-10199 Opinion of the Court 7

On July 9, 2020, the day the Settlement Administrator

emailed the Rule 23(c)(2) notice to the class, the U.S. Supreme

Court granted certiorari in Facebook, Inc. v. Duguid “to resolve a con-

flict among the Courts of Appeals regarding whether an autodialer

must have the capacity to generate random or sequential phone

numbers.” 592 U.S. 395, 401–02 (2021). The issue before the Court

was the same as the principal issue in the Plaintiffs’ consolidated

actions: “whether th[e] definition [of an ATDS] encompasses

equipment [like GoDaddy used] that can ‘store’ and dial telephone

numbers, even if the device does not ‘us[e] a random or sequential

number generator.’” See id. at 399 (fourth alteration in original).

The Court held that it did not. Id. “To qualify as an [ATDS], a

....

As to the form of the notice, it must “contain an adequate

description of the proceedings written in objective, neutral

terms, that, insofar as possible, may be understood by the av-

erage class member.” Twi, 153 F.3d at 1227 (internal quotes

omitted). “Not only must the substantive claims be adequately

described but the notice must also contain information reason-

ably necessary to make a decision to remain a class member

and be bound by the final judgment or opt out of the action.”

Id. (internal quotes omitted). Such information includes “the

relief available, the steps necessary to opt out, and the implica-

tions of remaining a member of the class.” Adams, 493 F.2d at

1286.

Order at 4, 5–6, Drazen, ECF No. 49 (emphasis added).

We note that for classes certified under Rule 23(b)(3), the notice must in-

clude “the class claims, issues, or defenses.” Fed. R. Civ. P. 23(c)(2)(B)(iii). For

the full text of Rule 23(c)(2), see infra note 38. This requirement is discussed

more fully in Section III.B.ii.

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8 Opinion of the Court 21-10199

device must have the capacity either to store a telephone number

using a random or sequential generator or to produce a telephone

number using a random or sequential number generator.” Id.

Class Counsel realized that if the proceedings in their cases

were stayed pending the Supreme Court’s decision in Facebook, and

Facebook was decided in a way that favored GoDaddy, the

$2,267,570 of class members’ claims9 would likely be worthless and

the attorney’s fees would not be forthcoming. To avoid that sce-

nario, Class Counsel would have to persuade the District Court to

enter a final judgment that approved the settlement agreement and

granted their motion for attorney’s fees before the Supreme Court

decided Facebook. So, once the time for class members to file claims

expired, Class Counsel moved the District Court to hold a Rule

23(e)(2) final hearing to certify the class, approve the settlement

agreement as “fair, reasonable, and adequate,” approve the Rule

23(c)(2) notice, and grant their motion for attorney’s fees.

Class Counsel moved the District Court to do that in the

nick of time. The District Court heard their motion six days after

the Supreme Court heard argument in Facebook. 10 The District

Court issued its final judgment and order approving the proposed

settlement agreement, class, and attorney’s fees three months

9 $35 cash checks multiplied by 11,662 claims ($408,170) plus $150 vouchers

multiplied by 12,396 claims ($1,859,400) equals $2,267,570. See infra Section

I.E.ii.

10 The District Court also denied Class Counsel’s request to grant each class

representative a $5,000 service award. Drazen, 2020 WL 8254868, at *14.

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before the Supreme Court decided Facebook, which was favorable

to GoDaddy as Class Counsel anticipated. 11

The District Court granted Class Counsel’s motion over the

objection of Juan Pinto, the appellant here. Pinto made a couple of

arguments. First, he argued that the District Court ruled on the

motion for attorney’s fees prematurely because it was before the

deadline for objections, a violation of Rule 23(h) and due process.

Second, Pinto’s main objection was that the District Court’s order

approving the settlement agreement should be vacated as an abuse

of discretion because the fees awarded Class Counsel were far in

excess of what the class members would receive. This breached

the District Court’s fiduciary duty and made the settlement agree-

ment unfair, unreasonable, and inadequate under Rule

23(e)(2)(C)(iii). If the order was not vacated, he contended that the

District Court should be instructed to reconsider the attorney’s fees

issue because it failed to consider the issue under the heightened

scrutiny required by the Class Action Fairness Act (CAFA), 28

U.S.C. § 1712, in cases involving “coupon settlements.”

In this appeal, 12 we consider whether the District Court

abused its discretion in approving the proposed settlement

11 The District Court issued its order on December 23, 2020, id., and the Su-

preme Court issued the Facebook decision on April 1, 2021, 592 U.S. 395. See

infra Section I.E.iii.

12 This is the third time this appeal has been before this Court. We first enter-

tained it in June 2022. Drazen I (oral argument held June 9, 2022). To cure a

standing problem created by the application of Salcedo v. Hanna, 936 F.3d 1162

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10 Opinion of the Court 21-10199

agreement, certifying the class, granting Class Counsel’s motion

for attorney’s fees, and entering the final judgment. We conclude

that it did in several ways. First, it failed to consider the 2018

amendments to Rule 23(e)(2). The District Court also overlooked

evidence indicating that the settlement agreement was the product

of collusion, such as the overbroad release provision and inade-

quate relief provided to the class relative to what Class Counsel and

GoDaddy received. Next, the notice of the proposed settlement

the District Court ordered failed to inform the absent class mem-

bers of the “claims, issues, or defenses” in the Plaintiffs’ cases as

required by Rule 23(c)(2)(B)(iii), fundamental due process, and the

Court’s fiduciary obligation to the absent class members. Finally,

the District Court erred in three ways when it calculated attorney’s

fees because 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 CAFA and

thus declined to examine Class Counsel’s motion for attorney’s

fees with CAFA-mandated scrutiny and procedures.

In concluding that the District Court abused its discretion

and that its judgment must be vacated, we are not unmindful that

(11th Cir. 2019), we “vacate[d] the District Court’s approval of class certifica-

tion and settlement . . . and remand[ed] for the opportunity to revise the class

definition.” 41 F.4th at 1355. The mandate did not issue, and the case was

reheard en banc to address the vitality of Salcedo’s standing holding. Drazen v.

Pinto (Drazen II), 74 F.4th 1336, 1342 (11th Cir. 2023) (en banc). We addressed

that issue and sent the case back to the original panel to decide this appeal. See

id. at 1346.

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Class Counsel contributed to the abuse. As officers of the court,

they should have reminded the District Court that Rule

23(c)(2)(B)(iii) required that the notice of settlement sent to the

class members inform them about Facebook. They knew that the

Supreme Court’s Facebook decision would decide the dispositive issue

in their clients’ cases: whether systems like what GoDaddy used

here came under the definition of an ATDS in the TCPA.

In deciding this appeal, we must go back to 2016 when the

present litigation with GoDaddy started. Some of the lawyers act-

ing as Class Counsel here sued GoDaddy under the TCPA in the

District of Arizona on behalf of John Herrick—a class member in

these consolidated actions.13 They were unsuccessful; the District

Court there granted GoDaddy summary judgment because the sys-

tem GoDaddy used to send text messages to Herrick and potential

GoDaddy customers was not an ATDS. So, after appealing the

judgment to the U.S. Court of Appeals for the Ninth Circuit, they

joined forces with the remaining Class Counsel and made another

go of it in the Southern District of Alabama, in the cases here.

Thus, before we discuss the reasons for vacating the final judgment

in the cases here, we must look at Herrick’s case in the District of

Arizona and what took place in the Southern District of Alabama

thereafter in the consolidated cases now before us.

We split our opinion into four parts. Part I describes the

background of how this case came to be before us. Part II

13 We note that, among other firms, the law firm Bock, Hatch, Lewis & Op-

penheim, LLC, represents both John Herrick and Susan Drazen.

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12 Opinion of the Court 21-10199

establishes the general legal standards applicable to our review.

Part III discusses why the District Court’s judgment must be va-

cated and the cases remanded for further proceedings because the

Court failed to follow those standards. And Part IV concludes with

a summary.

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Table of Contents

I. Background ................................................................... 15

A. Herrick’s TCPA Case in the District of Arizona .............15

B. Southern District of Alabama Proceedings After Herrick’s

Appeal .....................................................................................19

i. Bennett’s Case .................................................... 19

ii. Drazen’s Case ....................................................... 22

C. Preliminary Approval of the Proposed Settlement

Agreement, Class Certification, and Notice ...................................24

i. Preliminary Approval of the Proposed Settlement

Agreement and Conditional Class Certification .................. 24

ii. District Court’s Order Granting Class Counsel’s

Motion.................................................................................. 26

iii. Notice .................................................................. 28

D. Attorney’s Fees and Pinto’s Objections..........................31

i. Class Counsel’s Motion for Attorney’s Fees .......... 31

ii. The District Court’s Order ................................... 35

iii. Pinto’s Objection ................................................. 37

iv. The District Court’s Response to Pinto’s Objection

.............................................................................................. 38

E. Events Following Certiorari in Facebook .......................39

i. Class Counsel Informs the District Court About

Facebook ................................................................................ 39

ii. Class Counsel Moves for Final Approval of the

Proposed Settlement Agreement......................................... 41

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14 Opinion of the Court 21-10199

iii. District Court Hearing ........................................ 42

iv. The District Court’s Approval Order and Final

Judgment .............................................................................. 46

II. Legal Standard .............................................................. 53

III. Discussion ................................................................... 54

A. Issues Related to Rule 23(e) .........................................56

i. Rule 23(e) and the District Court’s Fiduciary Duties

.............................................................................................. 56

ii. The District Court Erroneously Approved the

Settlement Agreement as Fair, Reasonable, and Adequate . 60

iii. Class Counsel Induced the District Court’s Error

.............................................................................................. 68

B. The Notice Did Not Comply with Rule 23(c) and Due Process

...............................................................................................70

i. Review of Issues Not Raised Below or Briefed on

Appeal .................................................................................. 70

ii. The District Court’s Rule 23(c)(2) and Due Process

Errors ................................................................................... 72

C. Attorney’s Fees Were Not Calculated Properly ................79

i. Rule 23(h) .............................................................. 79

ii. Claims-made v. Common Fund Settlements ....... 81

iii. The Class Action Fairness Act Applies Because the

Settlement was a Coupon Settlement ................................. 88

IV. Conclusion ................................................................. 107

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21-10199 Opinion of the Court 15

I. Background

The procedural and factual history of this appeal is compli-

cated, but its accuracy is paramount to our analysis. To make

things clear, we outline the events that brought the case to us as

follows. Section I.A. describes the proceedings in the TCPA case

Herrick brought against GoDaddy in the District of Arizona. Sec-

tion I.B. covers what transpired in the Southern District of Ala-

bama following Herrick’s appeal to the Ninth Circuit. Section I.C.

covers Class Counsel’s motion for the preliminary approval of the

proposed Settlement Agreement and the certification of a class for

the purpose of settlement, the District Court’s order granting the

motion, and the sending of the notice of settlement to the class

members. Section I.D. concerns Class Counsel’s motion for attor-

ney’s fees, the District Court’s order granting the motion, Pinto’s

objection to the order, and the District Court’s order issued in re-

sponse. Section I.E. describes what happened in the consolidated

cases as Facebook was proceeding in the Supreme Court. It details

the hearing where the District Court considered Class Counsel’s

motions for final approval of the proposed Settlement Agreement

and for attorney’s fees, as well as Pinto’s objections, and then en-

tered final judgment.

A. Herrick’s TCPA Case in the District of Arizona

On January 28, 2016, John Herrick sued GoDaddy under the

TCPA in the District of Arizona.14 Herrick purported to represent

14 See Complaint, Herrick, ECF No. 1.

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a Rule 23(b)(3) class consisting of “[a]ll persons in the United States

who received one or more unsolicited text messages sent by or on

behalf of GoDaddy after October 15, 2013.” 15

Herrick’s complaint, which was amended on August 9, 2016,

alleged the same TCPA violations subsequently asserted in the

complaints in the consolidated actions here, Drazen and Bennett.16

Herrick’s amended complaint asserted that GoDaddy violated

47 U.S.C. § 227(b)(1)(A)(iii) by employing an ATDS to dial his

phone number and the phone numbers of his proposed class mem-

bers and send them text messages. 17 He also asserted that the

ATDS had the capacity to store or produce telephone numbers to

be called using a random or sequential number generator and to

dial such numbers.18 In his prayer for relief, Herrick sought:

(1) statutory damages of $500 per text message under § 227(b)(3)(B)

15 Id. at 8.

16 Amended Complaint, Herrick, ECF No. 27. For convenience we sometimes

refer to Drazen and Bennett collectively as Drazen/Bennett. As noted above, the

only material difference between the complaints in Herrick and in Drazen/Ben-

nett is that Herrick’s class was restricted to violations involving text messages

whereas the complaints in Drazen/Bennett involved phone calls and text mes-

sages.

17 Id. at 15–19. On May 14, 2018, in its order granting GoDaddy summary

judgment, the Herrick court stated: “GoDaddy contracted with a web-based

software application company called 3Seventy, Inc. (‘3Seventy’) to send a one-

text marketing campaign to nearly 100,000 of its customers using its 3Seventy

Platform.” Herrick v. GoDaddy.com LLC, 312 F.Supp.3d 792, 793 (D. Ariz. 2018),

appeal docketed, No. 18-16048 (9th Cir. June 6, 2018).

18 Amended Complaint, Herrick, ECF No. 27 at 18–19.

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and up to $1,500 per text message sent willfully or knowingly, and

(2) an injunction prohibiting GoDaddy from “engaging in the same

or similar practices.” 19

On March 31, 2017, following discovery, GoDaddy moved

the District Court for summary judgment. Alternatively, GoDaddy

moved the Court to stay the proceedings pending the Ninth Cir-

cuit’s decision in Marks v. Crunch San Diego, LLC, 20 regarding the

proper interpretation of an ATDS.21 The issue in Marks was

whether, as the District Court held, 22 the messaging system the

19 Id. at 19–20.

20 904 F.3d 1041 (9th Cir. 2018), abrogated by Facebook, Inc. v. Duguid, 592 U.S.

395 (2021).

21 The Ninth Circuit had deferred its decision in Marks until the U.S. Court of

Appeals for the D.C. Circuit decided ACA International v. Federal Communica-

tions Commission, 885 F.3d 687 (D.C. Cir. 2018). See Marks, 904 F.3d at 1049.

The D.C. Circuit decided ACA International on March 16, 2018, and the Ninth

Circuit decided Marks on September 20, 2018.

22 The District Court, in granting the defendant summary judgment, held that:

The platform used by Defendant does not have the present

capacity to store or produce numbers to be called, using a ran-

dom or sequential number generator, and to dial those num-

bers. Numbers only enter the system through one of the three

methods listed above, and all three methods require human

curation and intervention. None could reasonably be termed

a “random or sequential number generator.” Thus, because

the Textmunication platform lacks a random or sequential

number generator, it is not currently an ATDS.

Marks v. Crunch San Diego, LLC, 55 F.Supp.3d. 1288, 1292 (S.D. Cal. 2014) (inter-

nal citation omitted), vacated and remanded, Marks, 904 F.3d 1041.

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18 Opinion of the Court 21-10199

defendant used to send text messages, which otherwise would be

prohibited by the TCPA, was not an ATDS “because it lacked the

present or potential capacity ‘to store or produce telephone num-

bers to be called, using a random or sequential number generator.’”

Marks, 904 F.3d at 1043 (quoting 47 U.S.C. § 227(a)(1)).

The District Court in Herrick did not wait for the Ninth Cir-

cuit’s decision on that issue before ruling on GoDaddy’s motion for

summary judgment. On May 14, 2018—four months before Marks

was decided—the Court granted the motion and dismissed Her-

rick’s TCPA action on the ground that the system GoDaddy used

to send the text messages to Herrick’s phone was not an ATDS. As

the Court put it:

The 3Seventy Platform used by GoDaddy did not

have the [capacity] “to store or produce numbers to

be called, using a random or sequential number gen-

erator.” Numbers that were called could only be in-

putted into the 3Seventy Platform by a prepro-

grammed file or list provided by the user; the Plat-

form could not randomly or sequentially generate

these numbers by itself. Moreover, although it may

be theoretically plausible that the 3Seventy Platform

could be reprogrammed to have this capacity, it is un-

disputed that to enable such capability, a user would

have to do much more than simply press a button.

Herrick v. GoDaddy.com LLC, 312 F.Supp.3d 792, 800 (D. Ariz. 2018)

(first quoting 47 U.S.C. § 227(a)(1), and then citing ACA Int’l, 885

F.3d at 695), appeal docketed, No. 18-16048 (9th Cir. June 6, 2018).

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About one and a half years after Herrick appealed the Dis-

trict Court of Arizona’s judgment, the Ninth Circuit stayed the case

pending the approval or disapproval of the settlement agreement

in Drazen/Bennett.23

B. Southern District of Alabama Proceedings After Herrick’s Appeal

Herrick’s case is but one of the three relevant district court

proceedings in this appeal. We now discuss the two other cases

brought by Plaintiffs Jason Bennett and Susan Drazen.

i. Bennett’s Case

Bennett sued GoDaddy in the Southern District of Alabama

on June 20, 2016. 24 His class-action complaint alleged the same

TCPA violations Herrick alleged and in two counts sought identi-

cal relief. 25 The complaint differed from Herrick’s in that

23 Order at 1, Herrick v. GoDaddy.com, LLC, No. 18-16048, (9th Cir. Dec. 18,

2019), ECF No. 45.

24 Bennett v. GoDaddy.com, LLC, No. 1:16-cv-00291-KD-N (S.D. Ala. June 20,

2016).

25 Bennett’s complaint sought the statutory damages of $500 and $1,500 for a

class consisting of:

All persons within the United States who, since two (2) year

prior to the filing of this Complaint through the date of the

certification of a class herein, received a call placed to a cellular

telephone line by or on behalf of Defendant that included or

introduced an advertisement or constituted telemarketing,

and was initiated using an automatic telephone dialing system,

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20 Opinion of the Court 21-10199

GoDaddy’s alleged violations consisted of telephone calls, rather

than text messages. 26 On November 1, 2016, GoDaddy moved the

District Court to transfer the action to the District of Arizona under

28 U.S.C. § 404(a) based on a forum-selection clause.27 It granted

the motion with Bennett’s consent on November 9, 2016. On De-

cember 1, 2017, Bennett, with leave of court, filed an amended

complaint which changed the description of the proposed class to

include:

All persons within the United States to whom, from

November 4, 2014 through October 19, 2016, Defend-

ant’s Customer Development Team initiated a tele-

phone call to his or her cellular telephone using an

[ATDS] pursuant to one or more of the Telemarket-

ing Campaigns that resulted in the initiation of a tele-

phone call to Plaintiff’s cellular telephone.

absent the prior express written consent of the called party to

receive such calls.

Complaint at 5, Bennett, No. 1:16-cv-00291-KD-N (S.D. Ala. June 20, 2016),

ECF No. 1.

26 Bennett’s complaint was brought under the Class Action Fairness Act of

2005 (CAFA), 28 U.S.C. §§ 1332(d), 1453, 1711–15, and invoked the district

court’s subject-matter jurisdiction under § 1332(d)(2). Id. at 2. It is obvious

that Drazen and Herrick were also brought under CAFA and that the plaintiffs

impliedly invoked the District Court’s subject matter jurisdiction under

28 U.S.C. §§ 1331, 1332(d)(2).

27 Defendant’s Brief in Support of Motion to Transfer Venue at 3, Bennett,

No. 1:16-cv-00291-KD-N (S.D. Ala. June 20, 2016), ECF No. 18. The clause

was among the terms of Herrick’s service agreement with GoDaddy. Id.

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21-10199 Opinion of the Court 21

Amended Complaint at 7, Bennett v. GoDaddy.com LLC,

No. 2:16-cv-03908-ROS (D. Ariz. Dec. 1, 2017), ECF No. 75. On

March 15, 2019, the District Court granted Bennett’s motion to cer-

tify the class as a Rule 23(3)(b) class. 28

Meanwhile, the appeal of the District Court’s judgment in

Herrick was well underway. On March 4, 2019, Herrick filed his

opening brief. Pl.-Appellant’s Opening Br., Herrick v. GoDaddy.com

LLC, 2019 WL 1134650 (9th Cir. Mar. 4, 2019). It stated the issue

presented for review thusly: “Does the TCPA’s definition of an

[ATDS] ‘include a device that stores telephone numbers to be

called, whether or not those numbers have been generated by a

random or sequential number generator?’ Marks v. Crunch San Di-

ego, LLC, 904 F.3d 1041, 1043 (9th Cir. 2018).” Id. at *2. GoDaddy’s

answer brief filed on May 3, 2019, presented a counterstatement of

issues:

1. Whether the District Court correctly entered sum-

mary judgment in favor of GoDaddy where Plaintiff’s

TCPA claim requires proof that GoDaddy used an

ATDS, which the TCPA defines as “equipment which

has the capacity (A) to store or produce telephone

numbers to be called, using a random or sequential

number generator . . . ,” and it is undisputed that the

28 Bennett moved the District Court to certify the class on September 15, 2016.

The court denied the motion on October 13, 2016, as premature, subject to

renewal. From that point until March 15, 2019, the parties engaged in exten-

sive discovery regarding Bennett’s claim that GoDaddy had violated 47 U.S.C.

§ 227(b)(1)(A).

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22 Opinion of the Court 21-10199

third party software platform GoDaddy used to send

the single text message at issue (the “3Seventy Plat-

form”) does not have the capacity to generate tele-

phone numbers, randomly, sequentially, or other-

wise.

2. Whether the District Court correctly entered sum-

mary judgment in favor of GoDaddy because Plaintiff

could not prove that GoDaddy used an ATDS for the

separate reason that undisputed facts demonstrate

the 3Seventy Platform’s “inability to dial numbers

without human intervention.”

Appellee’s Answer Br., Herrick v. GoDaddy.com LLC, 2019

WL 2061415, at *3–4 (9th Cir. May 3, 2019).

Herrick filed a reply brief on June 24, 2019. Pl.-Appellant’s

Reply Br., Herrick v. GoDaddy.com LLC, 2019 WL 2777421 (9th Cir.

June 24, 2019). The Ninth Circuit has stayed the appeal pending

the disposition of this appeal. 29

ii. Drazen’s Case

Drazen sued GoDaddy in the Southern District of Alabama

on August 21, 2019. Drazen’s Complaint,30 mirroring the viola-

tions asserted in Herrick, alleged that GoDaddy violated the TCPA,

47 U.S.C. § 227(b)(1), by using an ATDS to make phone calls and

29 See supra note 23.

30 The District Court treated the complaint in Drazen as the operative com-

plaint for the consolidated class actions. We do too, referring to it as the

“Complaint.”

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21-10199 Opinion of the Court 23

send text messages to the members of the class she was represent-

ing. The Complaint sought statutory damages—$500 for each call

or text and $1,500 for each willful or knowing violation of

§ 227(b)(1)—and injunctive relief.

Drazen filed her Complaint on behalf of a Rule 23(3)(B)

class that numbered “at least 100.” The class contained:

All persons within the United States to whom,

from November 4, 2014, through December 31,

2016, Defendant [GoDaddy] 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 com-

prise the Cisco Unified Communications Man-

ager.

Drazen I, 41 F.4th at 1362 (emphasis added).

On September 23, 2019, Bennett, joined by GoDaddy, filed a

Notice of Settlement in Bennett, stating that the parties had reached

a settlement that was part of a larger settlement they had negoti-

ated with Drazen. They requested the District of Arizona to stay

proceedings in Bennett pending the Drazen court’s approval of the

settlement. The Bennett court granted the stay on October 3, 2019.

On September 30, 2019, while the Notice of Settlement was

pending in Bennett, Drazen filed a Notice of Settlement in Drazen

stating that Drazen and GoDaddy had reached a settlement and in-

tended to move the District Court for preliminary approval of their

settlement agreement on or before October 14, 2019.

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24 Opinion of the Court 21-10199

On February 11, 2020, GoDaddy and Bennett filed a joint re-

quest that the District of Arizona transfer their case to the South-

ern District of Alabama and, on February 14, the Court granted

this motion and transferred Bennett. Seven days later, the Drazen

court granted Drazen’s motion to consolidate Drazen and Bennett.

C. Preliminary Approval of the Proposed Settlement Agreement, Class

Certification, and Notice

With that procedural ground plowed, we next lay out the

District Court’s preliminary approval of the proposed Settlement

Agreement, its conditional class certification, and the Notice that

was sent to the Class Members.

i. Preliminary Approval of the Proposed Settlement Agreement

and Conditional Class Certification

On January 10, 2020, Drazen filed an unopposed motion to

conditionally certify a Rule 23(b)(3) class for settlement only and

preliminarily approve their proposed settlement agreement.31 On

May 14, 2020, the District Court entered an order indicating that it

would grant the motion “if the [p]roposed Settlement Agreement

is amended to remove Herrick as a [c]lass [r]epresentative.” 32 Dra-

zen, 2020 WL 2494624, at *10 (S.D. Ala. May 14, 2020).

31 Drazen and Bennett were, in effect, proposing the following: based on their

submission to the District Court, it was likely that—at a hearing held under

Rule 23(e)(2) to determine whether the parties’ settlement proposal was fair,

reasonable, and adequate—the District Court would approve the proposal.

32 The District Court concluded that Herrick lacked standing under Salcedo.

Drazen, No. 1:19-cv-00563-KD-B, at *5 (S.D. Ala. May 14, 2020).

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21-10199 Opinion of the Court 25

On May 28, 2020, Drazen and Bennett amended the Settle-

ment Agreement accordingly and submitted it to the District Court

as the Second Amended Class Action Settlement Agreement and

Release (Settlement Agreement or Agreement). 33 Attached to the

Settlement Agreement were Short and Long Form Notices. They

appear in the Appendix to this opinion as Exhibits A and B, respec-

tively.

According to the Short Form Notice, the Settlement Agree-

ment provided that GoDaddy would make up to $35 million avail-

able to pay class members claims (in the form of a $150 Voucher

Award or a $35 Cash Award), settlement administration costs, at-

torney’s fees of up to 30% of $35 million ($10.5 million), and a

$5,000 service award to each of the Plaintiffs—Drazen, Bennett,

and Herrick. The Settlement Agreement provided that depending

on the number of claims submitted and approved, each class mem-

ber’s claim may be reduced on a pro rata basis to enable the Settle-

ment Administrator to pay the attorney’s fees, costs and expenses,

and the service awards. A class member not opting out of the set-

tlement would “release any claims [the class member] may have, as

more fully described in the Settlement Agreement.” 34

33 The parties to the Settlement Agreement were GoDaddy and Plaintiffs Dra-

zen, Bennett, and Herrick, individually and on behalf of the settlement class.

34 The Settlement Agreement is briefly described in the Short Form Notice.

See App. Ex. A. The Short Form Notice was sent to the class members after

the District Court certified the class for settlement purposes and preliminarily

approved the Settlement Agreement. As indicated in the Short Form Notice,

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26 Opinion of the Court 21-10199

ii. District Court’s Order Granting Class Counsel’s Motion

In its June 9, 2020, order, the District Court certified the pro-

posed class for settlement only, preliminarily approved the Settle-

ment Agreement, approved the proposed Short Form Notice and

Long Form Notice, and appointed Class Counsel.35 Pertinent here,

the order also required that:

• By June 23, 2020, “GoDaddy shall provide the Settlement Ad-

ministrator with the [email addresses] for the entities or persons

to which calls or text messages were sent” during the relevant

period.

• By July 9, 2020, “the Settlement Administrator shall launch the

settlement website” and send the Short Form Notice to the class

members by email.

• By July 24, 2020, Class Counsel shall file “any motion for ap-

proval of attorney’s fees and . . . [service] award.”

• By July 31, 2020, objections to the motion for attorney’s fees or

incentive awards must be filed. Motions for attorney’s fees and

service awards “shall be heard at the final hearing” on Decem-

ber 14, 2020.

• “By August 31, 2020, the members of the settlement class who

wish to be excluded must request exclusion from the settlement

the Agreement itself was made available to the class members on the website

the Settlement Administrator created, www.DrazenTCPASetttlement.com.,

after the District Court preliminarily approved the Settlement Agreement.

35 The District Court held two ten-minute telephonic conferences with coun-

sel after issuing the May 14 order and before the June 9 order—on May 29 and

June 4.

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21-10199 Opinion of the Court 27

class[, a]s provided in the Long-Form Notice available on the

Settlement website.” (footnote omitted)

• By August 31, 2020, class members who “chose to object to any

part or all of the Class Settlement Agreement must . . . [do so

a]s provided in the Notice[. T]he objection must be signed by

the class member or their attorney and include the class mem-

bers’ full name, current address, telephone number(s), and Go-

Daddy account number(s).” It also must include:

if represented by counsel, the name, bar number, ad-

dress, and telephone number of your counsel; (3) a

signed statement, under penalty of perjury, that you

received one or more phone calls or text messages

from GoDaddy between November 4, 2014 to De-

cember 31, 2016, and that you are a member of the

Settlement Class; (4) a statement of all your objec-

tions to the Settlement, including your legal and fac-

tual basis for each objection; (5) a statement of

whether you intend to appear at the Final Approval

Hearing, either with or without counsel, and if with

counsel, the name of your counsel who will attend;

(6) the number of times in which you, your counsel,

or your counsel’s law firm have objected to a class ac-

tion settlement within the five years preceding the

date that you submit your objection, the caption of

each case in which you, your counsel, or your coun-

sel’s law firm has made such objection, and a copy of

any orders related to or ruling upon your, your coun-

sel’s, or your counsel’s law firm’s prior objections that

were issued by the trial and appellate courts in each

listed case; (7) a list of all persons who will be called

to testify at the Final Approval Hearing in support of

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28 Opinion of the Court 21-10199

the objections, as well as any exhibits they intend to

introduce at the Final Approval Hearing; and (8) any

and all agreements related to the objection or the pro-

cess of objections—whether written or verbal—be-

tween you or your counsel and any other person or

entity.

• “If the class member wishes to speak at the final hearing, they

must file a notice of appearance with the Court and mail it to

class counsel and counsel for Defendants no later than two (2)

weeks before the final hearing. The Court will not consider

any objection that is not timely filed or that fails to substantially

meet the requirements.”

• By October 7, 2020, class members “shall submit a valid Claim

Form to the Settlement Administrator.”

• By November 3, 2020, “[m]otions in support of final approval

[of the class action settlement agreement] shall be submitted.”

The Court will consider such motions at the final hearing.

Order at 7–9, Drazen (S.D. Ala. June 9, 2020), ECF No. 49. 36

iii. Notice

On July 9, 2020, the Settlement Administrator established

the settlement website: www.DrazenTCPASettlement.com. It also

posted on the website the Complaint, the Settlement Agreement,

and the June 9 order. The same day, the Administrator emailed the

Short Form Notice to the class members. Because the Class was a

36 The events depicted in the bulleted list above largely coincided with the

events set out in the proposed order the Plaintiffs submitted to the District

Court on May 28. We have provided specific dates above based on the dead-

lines set out in the June 9 order.

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21-10199 Opinion of the Court 29

Rule 23(b)(3) class, 37 that notice was supposed to comply with Rule

23(c)(2)(B). 38

Regarding Rule 23(c)(2)(B)(iii)’s requirement that the notice

include “the class claims, issues, or defenses,” the Short Form No-

tice stated:

37 The District Court so found in its June 9, 2020, order and in its December

23, 2020, final judgment and order approving the class settlement.

38 Rule 23(c)(2)(B) provides that:

For any class certified under Rule 23(b)(3)—or upon ordering

notice under Rule 23(e)(1) to a class proposed to be certified

for purposes of settlement under Rule 23(b)(3)—the court

must direct to class members the best notice that is practicable

under the circumstances, including individual notice to all

members who can be identified through reasonable effort.

The notice may be by one or more of the following: United

States mail, electronic means, or other appropriate means.

The notice must clearly and concisely state in plain, easily un-

derstood language:

(i) the nature of the action;

(ii) the definition of the class certified;

(iii) the class claims, issues, or defenses;

(iv) that a class member may enter an appearance

through an attorney if the member so desires;

(v) that the court will exclude from the class any mem-

ber who requests exclusion;

(vi) the time and manner for requesting exclusion; and

(vii) the binding effect of a class judgment on members

under Rule 23(c)(3).

(emphasis added).

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30 Opinion of the Court 21-10199

Defendant GoDaddy . . . violated the Telephone Con-

sumer Protection Act (“TCPA”), 47 U.S.C. § 227, by

placing phone calls and sending text messages to cel-

lular telephone numbers without the recipients’ con-

sent. GoDaddy denies the allegations in the law-

suits . . . .

. . . GoDaddy placed a voice or text message call to

your cellular telephone pursuant to an outbound

campaign facilitated by the web-based software appli-

cation used by 3Seventy, Inc., or the software pro-

grams and platforms that comprise the Cisco Unified

Communications Manager.

App. A.

As for Rule 23(c)(2)(B)(v)’s requirement “that the court will

exclude from the class any member who requests exclusion,” the

Short Form Notice stated: “If you do not exclude yourself [by Au-

gust 31, 2020], you will release any claims you may have, as more

fully described in the Settlement Agreement, available at the Set-

tlement website [www.DrazenTCPASettlement.com].” 39 Id.

After explaining that a hearing would be held on December

14, 2020, to consider approving the proposed Settlement Agree-

ment, and Class Counsel’s request for attorney’s fees of 30% of

$35,000,000 and costs, the Notice stated: “The Motion for these fees

39 The Short Form Notice did not explain in detail what Class Members must

do to exclude themselves; instead, it directed Class Members to the Long

Form Notice on the Settlement Website. See App. Ex. A. The Long Form

Notice exclusion details are discussed in Section III.A.iii. See also App. Ex. B.

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21-10199 Opinion of the Court 31

and expenses will be posted on the Settlement Website when it is

filed with the Court.” 40 Id.

D. Attorney’s Fees and Pinto’s Objections

That brings us to the catalyst of this appeal: Class Counsel’s

motion for attorney’s fees, Pinto’s objection, and the District

Court’s response.

i. Class Counsel’s Motion for Attorney’s Fees

On July 24, 2020, Class Counsel filed their motion for attor-

ney’s fees, costs and expenses, and for service awards for the Plain-

tiffs—Drazen, Bennett, and Herrick.41 Treating the “up to $35 mil-

lion” GoDaddy was providing for the settlement as a “common

fund,” the motion sought attorney’s fees of 30%, for a total of $10.5

million. Class Counsel argued this was reasonable under Eleventh

Circuit precedent, namely Camden I Condominium Ass’n v. Dunkle,

946 F.2d 768, 774 (11th Cir. 1991). The motion also sought service

awards of $5,000 for each of the Plaintiffs for the contributions they

had made in preparing the cases for settlement. The motion stated

that the Class consisted of over 1.26 million members and that over

15,600 had filed claims for a $150 voucher or $35 cash as of its filing.

40 To object to Class Counsel’s motion for attorney’s fees, a Class Member

would have to scan the Settlement website, but would have no particular rea-

son to do so exactly between July 24 and 31.

41 The Settlement Administrator published Class Counsel’s motion on the Set-

tlement Website on a date the record does not disclose.

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32 Opinion of the Court 21-10199

Class Counsel stated that it was an open question whether

the dialing system GoDaddy used to make the phone calls and text

messages to the Class Members was an ATDS—although the Her-

rick district court had answered the question in favor of GoDaddy

and against Herrick on summary judgment. Counsel said that

whether the dialing system GoDaddy had used constituted an

ATDS

was the subject of the motion for summary judgment

[in Herrick] and [the] subsequent appeal to the Ninth

Circuit . . . and, most recently, ha[d] been granted cer-

tiorari by the United States Supreme Court to resolve

the circuit split on the issue. See Facebook, Inc. v.

Duguid, No. 19-511, 2020 WL 3865252 (U.S. July 9,

2020). That is, the issue of what constitutes an ATDS

is now subject to Supreme Court review, with the po-

tential for a ruling strongly adverse to Plaintiffs and

the putative Class members that would be dispositive in

this case. As a result, had this Settlement not been

reached when it was reached it is entirely possible that

the Actions would have been stayed in their entirety

pending the Supreme Court’s ruling in Facebook, with

the Settlement Class members receiving no benefits

whatsoever.

Pl.’s Mot. in Support of Att’y’s Fees at 11–12, Drazen (S.D. Ala. July

24, 2020), ECF No. 50 (emphasis added). 42

42 Put differently, had Class Counsel waited for the Supreme Court’s decision

in Facebook and the Court decided the ATDS issue favorably to their position,

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21-10199 Opinion of the Court 33

In Marks, the Ninth Circuit held that “the statutory defini-

tion of ATDS is not limited to devices with the capacity to call num-

bers produced by a ‘random or sequential number generator,’ but

also includes devices [like the one GoDaddy used] with the capacity

to dial stored numbers automatically.” Marks, 904 F.3d at 1052

(quoting 47 U.S.C. § 277(a)(1)(A)). In prosecuting Herrick’s appeal

to the Ninth Circuit, Class Counsel relied on Marks. In Herrick’s

opening brief, they stated the issue as: “Does the TCPA’s definition

of an [ATDS] ‘include[] a device that stores telephone numbers to

be called, whether or not those numbers have been generated by a

random or sequential number generator?’” Plaintiff-Appellant’s

Opening Br., Herrick v. GoDaddy.com, LLC, No. 18-16048, 2019 WL

1134650, at *2 (9th Cir. Mar. 4, 2019) (alteration in original) (quot-

ing Marks, 904 F.3d at 1043).

Facebook filed its cert. petition in Facebook on October 17,

2019. The Supreme Court granted the petition on July 9, 2020—

fifteen days before Class Counsel filed their motion for attorney’s

fees. Facebook, Inc. v. Duguid, 141 S.Ct. 193 (2020) (mem.). The

Court granted certiorari on the second issue presented in Face-

book’s petition: “Whether the definition of ATDS in the TCPA en-

compasses any device that can ‘store’ and ‘automatically dial’ tele-

phone numbers, even if the device does not ‘us[e] a random or se-

quential number generator.’” Petition for Writ of Certiorari at ii,

Class Counsel would have tried to cancel the Settlement Agreement and sued

GoDaddy for more than $600 million (i.e., 1.26 million Class Members multi-

plied by a minimum of $500 in statutory damages per member).

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34 Opinion of the Court 21-10199

Facebook, Inc. v. Duguid, No. 19-511 (U.S. 2019), 2019 WL 5390116,

at *ii (alteration in original). 43 The resolution of the issue, one way

or the other, would have decided whether the claims the Plaintiffs

brought against GoDaddy in Drazen/Bennett were valid. If their

claims were valid, GoDaddy’s exposure to the certified class would

have exceeded $600 million.44

As it turned out, the Supreme Court rejected Class Counsel’s

interpretation of the ATDS on April 1, 2021. See Facebook, 592 U.S.

at 399. It reversed the Ninth Circuit’s decision and abrogated Marks

with this statement:

The question before the Court is whether that defini-

tion encompasses equipment that can “store” and dial

telephone numbers, even if the device does not “us[e]

a random or sequential number generator.” It does

not. To qualify as an “automatic telephone dialing

system,” a device must have the capacity either to

store a telephone number using a random or sequen-

tial generator or to produce a telephone number us-

ing a random or sequential number generator.

43 Facebook’s petition presented two issues: (1) “[w]hether the TCPA’s prohi-

bition on calls made using an ATDS is an unconstitutional restriction of

speech, and if so whether the proper remedy is to broaden the prohibition to

abridge more speech,” and (2) “[w]hether the definition of ATDS in the TCPA

encompasses any device that can ‘store’ and ‘automatically dial’ telephone

numbers, even if the device does not ‘us[e] a random or sequential number

generator.’ Petition for Writ of Certiorari at ii, Facebook, Inc. v. Duguid, No.

19-511 (U.S. 2019), 2019 WL 5390116, at *i–*ii (third alteration in original).

44 See supra note 42.

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21-10199 Opinion of the Court 35

Id. (alteration in original).

In December 2020—when the District Court here convened

to hear Class Counsel’s motion to certify the class and approve the

proposed settlement agreement and motion for attorney’s fees—

the Supreme Court had already heard argument in Facebook and the

was case under submission. 45

ii. The District Court’s Order

As noted above, the District Court’s June 9, 2020, order

stated that Class Counsel’s motion for attorney’s fees and service

awards “shall be heard at the final hearing,” set for December 14,

2020. 46 However, on July 27, 2020, just three days after Class Coun-

sel filed their motion for fees, the District Court took Class Coun-

sel’s July 24 motion under submission. Fifteen days later, on August

45 Facebook was argued December 8, 2020, and the Drazen final fairness hearing

was December 14, 2020.

46 The Short Form Notice confirmed this date:

The Court will hold a hearing on [December 14, 2020,] at [2:00

p.m. CST] in Courtroom 4B of the U.S. District Court for the

[Southern District of Alabama], [155 Saint Joseph St., Mobile,

AL 36602], to consider whether to approve the Settlement, a

request by Class Counsel for attorney’s fees up to 30% of

$35,000,000, costs for their work in the case, and an incentive

award payment in an amount up to $5,000 for each of the

Plaintiffs. The Motion for these fees and expenses will be

posted on the Settlement Website when it is filed with the

Court. The Court will decide the amount of fees and expenses

to award.

App. Ex. A.

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36 Opinion of the Court 21-10199

11, 2020, it ruled on the motion, granting it in part and denying it

in part.

The District Court based its ruling solely on the information

Class Counsel submitted with the motion. It accepted Class Coun-

sel’s portrayal of the class size and claims filed to date: 1.26 million

members and over 15,600 claims. Drazen, 2020 WL 4606979, at *1

(S.D. Ala. Aug. 11, 2020). The District Court then credited Class

Counsel’s representations as to the time spent on the cases (includ-

ing Bennett and Herrick in the District of Arizona)—over 5,423

hours—to calculate a lodestar of $2,800,053. Id. at *2–3 & n.2. It

also treated the up to $35 million GoDaddy was providing as a

“common fund.” Id. at *2–3. The District Court then turned to

Class Counsel’s request for fees of $10.5 million. Id. Relying in part

on In re Home Depot Inc., 931 F.3d 1065 (11th Cir. 2019), it found that

25% of the common fund was a “benchmark percentage fee

award” between the typical range of 20–30%. Id. (collecting cases).

After going through the Johnson factors, the District Court ap-

proved attorney’s fees of 25% of the $35 million or $8,750,000. 47 Id.

47 The District Court summed up its finding with this language:

The Court concludes that the fee should be 25% of the

Common Fund as opposed to the requested 30%. The Court

has considered the Johnson factors since the fee requested ex-

ceeds the average benchmark of 25%. The issues in this case

were not complex and did not require more than the average

skill required of litigation in federal court. Moreover, the re-

sults obtained for the plaintiffs ($35 dollars or a $150 voucher)

do not justify an award at the high end of the benchmark. The

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21-10199 Opinion of the Court 37

at *3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–

19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron,

489 U.S. 87 (1989)). It also approved Counsel’s request of

$105,410.51 and service awards of $5,000 for each of the Plaintiffs:

Drazen, Bennett, and Herrick. Id. at *4–5.

iii. Pinto’s Objection

On August 31, 2020, Pinto filed a counseled objection to the

District Court’s August 11 order granting Class Counsel’s motion

for attorney’s fees. He argued that the District Court had breached

its fiduciary duty to the absent class members and violated due pro-

cess. It did so because the Short Form Notice told class members

that they had until August 31 to object to Class Counsel’s motion

for attorney’s fees, not July 31 like the June 9 order said or August

11 when the court ruled on the attorney’s fees motion. Pinto also

Court acknowledges the significant effort expended to reach

the Settlement in this case. “Indeed, awarding a 25% rather

than a 30% fee in this case does not in any way indicate that

Class Counsel has not done exceedingly well in litigating . . .

on behalf of the Class.” Here, if Class Counsel received a 30%

fee, the average rate would be $1,936.12 per hour. This real-

ized hourly rate far exceeds the customary hourly rate in this

legal community. Thus, the Court finds the benchmark per-

centage fee award reasonable and appropriate here. The Court

will approve attorney[’]s[ fees] totaling 25% of the Common

Fund, $8,750,000.00.

Drazen, 2020 WL 4606979, at *3 (S.D. Ala. Aug. 11, 2020) (omission in original)

(quoting Swaney v. Regions Bank, No. 2:13-CV-00544-RDP, 2020 WL 3064945,

at *7 (N.D. Ala. June 9, 2020)).

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38 Opinion of the Court 21-10199

argued that the District Court erred by awarding attorney’s fees

prior to the December 14 hearing. He added that it failed to recog-

nize that the settlement at issue was a “coupon settlement” under

CAFA. As for the proposed Settlement Agreement, Pinto argued

that the District Court should disapprove it because it was unfair,

unreasonable, and inadequate under Rule 23(e)(2)(C)(iii) due to the

extent of the attorney’s fees awarded Class Counsel.

iv. The District Court’s Response to Pinto’s Objection

On September 1, 2020, after reviewing Pinto’s objection, the

District Court sua sponte amended its August 11 order. Addressing

its decision that Class Counsel should recover attorney’s fees of

25% of the $35 million “common fund,” the District Court

amended the August 11 order to read:

[T]he Court finds the benchmark percentage fee

award appears reasonable and appropriate here. The

Court concludes that attorney[’]s[] fees totaling 25%

of the Common Fund (amounting to $8,750,000.00)

appears reasonable and potentially reimbursable. A

final evaluation of same will be conducted upon re-

view of any objections and at the final approval hear-

ing.

Amended Order at 1–2, Drazen (S.D. Ala. Sept. 1, 2020), ECF No.

55.

As for the service awards, the District Court amended the

August 11 order to read:

The [service] awards of $5,000 for each Drazen, Ben-

nett, and Herrick appear reasonable considering the

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21-10199 Opinion of the Court 39

services performed by each for the Settlement Class

Members . . . . The incentive awards to be paid from

the Settlement Fund in accordance with the terms of

the Second Amended Class Action Settlement Agree-

ment (Doc. 50-1) are subject to a final evaluation and

review of any objections and at the final approval

hearing.

Id. at 2.

The order concluded by amending its August 11 order this

way: “Based upon the foregoing, it is ORDERED that the Plaintiffs’

motion (Doc. 50) for attorney[’]s[] fees, costs, expenses, and service

awards [is] CARRIED to the final approval hearing.” Id.

E. Events Following Certiorari in Facebook

Finally, we arrive at the events immediately prior to the cur-

rent appeal, namely Class Counsel’s notification to the District

Court about Facebook, the final fairness hearing, and the District

Court’s final approval of the Settlement.

i. Class Counsel Informs the District Court About Facebook

In their July 24 motion for attorney’s fees, Class Counsel

stated that the Supreme Court had granted certiorari in Facebook

“with the potential for a ruling strongly adverse to Plaintiffs and the

putative Class members that would be dispositive in this case.”

Class Counsel were informing the District Court that if Facebook

was decided before it approved the Settlement Agreement, the

Class Members’ claims and their motion for attorney’s fees could

become worthless. Class Counsel were also telling the District

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40 Opinion of the Court 21-10199

Court that the same result could occur if it stayed further proceed-

ings in Drazen/Bennett pending the Supreme Court’s decision in Fa-

cebook. As for the Settlement Agreement, they said, “it is entirely

possible that the Actions would have been stayed in their entirety

pending the Supreme Court’s ruling in Facebook, with the Settle-

ment Class members receiving no benefits whatsoever.”

Class Counsel were telling the District Court that they were

in a race against time, and time was closing in. 48 The Supreme

Court would decide Facebook during the October 2020 term. The

briefing was already under way. On September 4, 2020, Facebook

filed its opening brief.49 So too the Solicitor General.50 On October

16, Duguid filed his response. 51 On November 16, Facebook and

the United States each filed a reply brief. 52

48 Meanwhile, the District Court was concerned about Class Counsel’s pursuit

of service fees of $5,000 for each Plaintiff. On September 23, 2020, the District

Court directed the parties to brief the impact of Johnson v. NPAS Solutions, LLC,

975 F.3d 1244 (11th Cir. 2020) on the service awards issue. See id. at 1255 (ad-

dressing a conflict of interest between class representative, who obtained a

$6,000 incentive award, and class members).

49 Brief for Petitioner, Facebook, Inc. v. Duguid, No. 19-511, 2020 WL 5498510

(U.S. Sept. 4, 2020).

50 Brief for the United States as Respondent Supporting Petitioner, Facebook,

No. 19-511, 2020 WL 5439453 (U.S. Sept. 4, 2020).

51 Brief for Respondent, Facebook, No. 19-511, 2020 WL 6204411 (U.S. Oct. 16,

2020).

52 Reply Brief for Petitioner, Facebook, No. 19-511, 2020 WL 6876000 (U.S.

Nov. 16, 2020); Reply Brief of Respondent United States in Support of Peti-

tioner, Facebook, No. 19-511, 2020 WL 6876001 (U.S. Nov. 16, 2020).

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21-10199 Opinion of the Court 41

ii. Class Counsel Moves for Final Approval of the Proposed Set-

tlement Agreement

On November 3, 2020, Class Counsel moved the District

Court for final approval of the proposed Settlement Agreement

and class under Rule 23(e)(2). Attached to the motion was the dec-

laration of Kari Grabowski, a project manager at Epiq Class Action

& Claims Solutions, Inc. (Epiq)—the Settlement Administrator.

Grabowski was involved in issuing the Short Form Notice to the

Class Members and receiving their responses. Her declaration es-

tablished the following as of October 22, 2020: 67,392 unique visi-

tors accessed the Settlement website. 53 Of the approximately

1,237,000 class members, 24,059 (1.9%) filed claims. Of those

24,059 who filed claims, 12,396 asked for vouchers and 11,662 asked

for cash. Eleven Class Members (0.00089%) opted out of the set-

tlement. That meant that approximately 1,213,000 Class Members

(98.1%) would be bound by the settlement but would receive noth-

ing. Yet they would release their claims against GoDaddy and those

against the other “Released Parties” as provided in the Settlement

Agreement.

After this recital of Class Member’s responses to the Notice,

Class Counsel’s motion said the following regarding the adverse ef-

fect that the Supreme Court’s likely decision would have on Class

Members:

53 Assuming each visit was from a different class member, 5% of the class vis-

ited the website.

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42 Opinion of the Court 21-10199

Critically, the settlement must be measured

against the real possibility that Settlement Class

Members would have received no compensation

whatsoever. While Plaintiffs believe they would have

secured class certification and prevailed at trial, suc-

cess was not assured, particularly given the uncer-

tainty surrounding the interpretation of “automatic

telephone dialing system” (“ATDS”) – the precise is-

sue on appeal to the U.S. Supreme Court in Facebook,

Inc. v. Duguid, No. 19-511, 2020 WL 3865252 (U.S. July

9, 2020) – and the changing status of the law regard-

ing Article III standing for certain TCPA violations.

See Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019).

This Court has already preliminarily found that

this settlement is fair, adequate, and reasonable (Dkt.

No. 49, at 3)—a finding that is now supported by the

overwhelming majority of the Settlement Class. For

those reasons, as well as those stated further below,

Plaintiffs respectfully request that the Court grant fi-

nal approval of the settlement so that the thousands

of Settlement Class Members who filed claims may

receive the settlement benefits to which they are enti-

tled.

Pl.’s Mot. in Support of Final Approval at 8, Drazen,

No. 1:19-cv-00563-KD-B (S.D. Ala. Nov. 3, 2020), ECF No.

69.

iii. District Court Hearing

On December 8, 2020, the Supreme Court heard argument

in Facebook. Six days later, the District Court held a hearing on

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21-10199 Opinion of the Court 43

Class Counsel’s November 3 motion for final approval of the pro-

posed Settlement Agreement and class certification, and their July

24 motion for attorney’s fees, costs, expenses, and service awards.

The District Court focused the hearing on Pinto’s objection

to the Settlement Agreement—the size of its provision for Class

Counsel’s attorney’s fees compared to the Class Members’ recov-

ery—and the adequacy of the Short Form Notice. The hearing

ended with GoDaddy’s lawyer’s announcement about the status of

Facebook and the Supreme Court’s likely resolution of the ATDS

issue.

Pinto objected to the amount the Settlement Agreement set

aside for Class Counsel’s attorney’s fees. The fees, up to $10.5 mil-

lion (30% of $35 million) would amount to over four times the

claims the class members had submitted to the Settlement Admin-

istrator. Pinto argued that the settlement was a coupon settlement,

which required the District Court to give it heightened scrutiny un-

der CAFA, 28 U.S.C. § 1712(e). Pinto’s position was that “unless the

parties [were] willing to amend the settlement so that the benefit

can be returned to the class,” the District Court’s “only recourse

[would be] to disapprove the settlement.”

The District Court expressed concern that only 2% of the

Class Members had submitted claims. It asked “what kind of

things can be done to get more consumers to respond?” Turning

to John R. Cox—who was appearing for Class Counsel—and Go-

Daddy’s lawyer, the District Court expressed concern over the rate

of claims submitted. “I’m concerned whether the notice was

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44 Opinion of the Court 21-10199

adequate, if you want to say anything about that, to only get this

amount of people responding.” An answer to the question was not

forthcoming.

The District Court asked GoDaddy’s lawyer why GoDaddy

did not “just send [the class members] their $35.” 54 Then, to Cox,

it asked why they didn’t consider that. The District Court suggested

that they never intended that the settlement be for $35 million. “So

you are asking me to give you 25[%] of a $35 million settlement,

but if you never intended for it to be really $35 million, then that’s

not really the value of the settlement.”

During another exchange the Court had with GoDaddy’s

lawyer, the lawyer said: “following notice, [GoDaddy] received sev-

eral communications from customers . . . indicating that they did

not support the lawsuit and that they did not intend to file a claim.”

So the 2% claims rate was not “indicative of a notice problem.”

The hearing ended with the following discussion of Face-

book:

MS. ZECCHINI [GoDaddy’s lawyer]: Your Honor,

I would say that the case law has turned more favora-

bly to GoDaddy at this juncture.

THE COURT: And in what respects?

54 This would amount to approximately $43,295,000 ($35 each for 1,237,000

class members). Subtracting from the settlement agreement’s $35 million the

$10.5 million requested for attorney’s fees, $15,000 in service awards, and

$105,410.51 that expenses and costs amounted to, would leave $24,379,589.50

for class members—approximately $19.70 each.

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21-10199 Opinion of the Court 45

MS. ZECCHINI: Well, there’s the Facebook case

that the Supreme Court is dealing with briefing and

post-hearing on the automatic telephone dialing sys-

tem issue. That hearing was last week, I believe. The

days are starting to blend together.

But I think, certainly, we have an argument on the

TCPA issue. GoDaddy felt very strongly that the class

certification decision in Bennett is incorrect. Certainly,

that is something that we intend to appeal down the

road.

....

I think it would be difficult, at best, if the settle-

ment is not finally approved. To renegotiate a settle-

ment, frankly, at all in short term but certainly not

one that is as favorable to the class simply because of

the view that the law has become more favorable to

GoDaddy over time. Now, certainly, that can go the

other way, which is, you know, why we worked so

hard to see if we could reach settlement and get some

finality for GoDaddy and payment to the class.

THE COURT: Anything else?

MR. COX: . . . .

Given how the other circuits have ruled on [what

is an ATDS] and then in the Supreme Court’s Face-

book case, it has become virtually impossible to move

forward with any settlement negotiations until that

Facebook case is over.

So it would put the class in a position where they

have the opportunity to take the benefit that they’ve

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46 Opinion of the Court 21-10199

been provided and claimed or go back to the drawing

board and back into litigation in an environment that

[is] even less uncertain than when we arrived here and

settled the case in 2019.

Transcript of Hearing at 23–24, Drazen, No. 1:19-cv-00563-KD-B

(S.D. Ala. Dec. 14, 2020), ECF No. 84.

iv. The District Court’s Approval Order and Final Judgment

On December 23, the District Court entered its final judg-

ment and order approving the class-action settlement. After trac-

ing the history of the litigation, the order acknowledged that Pinto

wanted the settlement agreement either amended (to give Class

Members part of the attorney’s fees awarded, which, admittedly,

would be a difficult undertaking) or disapproved. The District

Court admitted that its August 11 order on attorney’s fees was

premature but considered the error harmless because it reconsid-

ered the attorney’s fees issue.

Next, the District Court disagreed with Pinto that the settle-

ment was a coupon settlement under CAFA:

[T]his is not a coupon settlement as contemplated by

CAFA. Notably, Class Members received the choice

between a $150 Voucher or a $35 cash award. The

$150 Voucher award in and of itself may be a coupon

as anticipated by CAFA, but, the presence of the $35

cash award removes this Settlement Agreement from

the purview of CAFA’s restrictions on coupon settle-

ments. . . . [I]t can be assumed that half of the

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21-10199 Opinion of the Court 47

claimants recognized the $150 Voucher as bestowing

equal or greater value than the $35 cash award.

Drazen, 2020 WL 8254868, at *4 (citations omitted).

The District Court, apparently referring to Rule 23(c)(2), re-

iterated the finding that it made in granting preliminary approval

of the Settlement Agreement on June 9: “the forms of class notice

proposed by the parties . . . was the best notice practicable under

the circumstances.” Relying on Kari Grabowski’s declaration for

Epiq, it also found that the notice was 96.95% effective for a class

of 1,237,296, with eleven Class Members opting out and 24,059

submitting claims as of October 22, 2020.

The District Court then determined whether the Settlement

Agreement was “fair, reasonable, and adequate” under Rule

23(e)(2). But it did not do so by expressly considering the standards

listed under Rule 23(e)(2)(A)–(D). Instead, it considered the issue

pursuant to the factors listed in Bennett v. Behring Corp., 737 F.2d 982

(11th Cir. 1984):

(1) the likelihood of success at trial; (2) the range of

possible recovery; (3) the point on or below the range

of possible recovery at which a settlement is fair, ade-

quate and reasonable; (4) the complexity, expense and

duration of litigation; (5) the substance and amount

of opposition to the settlement; and (6) the stage of

proceedings at which the settlement was achieved.

Id. at 986.

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48 Opinion of the Court 21-10199

Before applying these factors, the District Court considered

whether the Settlement Agreement was the product of collusion.

The District Court found that it was not because the parties partic-

ipated in multiple arms-length negotiations following “extensive

and contentious discovery.” This weighed in favor of approving the

Settlement Agreement. So, too, the opinion of counsel. The par-

ties were represented by skilled and experienced counsel, many of

whom had extensive experience in class action litigation.

Turning to the Bennett factors, the District Court found that

the first factor weighed in favor of approving the Settlement Agree-

ment:

Plaintiffs faced substantial hurdles that affected the

class’s likelihood of succeeding on the merits at trial.

Plaintiffs allege that GoDaddy violated the TCPA

when it called and texted unwanted marketing mes-

sages. Moreover, . . . the case law surrounding TCPA

litigation is unsettled rendering the chance for success

at trial similarly uncertain. For example, one open

question concerns whether the technology GoDaddy used

constitutes an ATDS under the TCPA.

...

As the parties indicated at the Final Approval Hear-

ing, GoDaddy’s bargaining position has strengthened

since this settlement was reached because of develop-

ments in TCPA law. Thus, the benefit provided to the

Settlement Class may even be less had this Settlement

Agreement been negotiated today.

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21-10199 Opinion of the Court 49

Drazen, 2020 WL 8254868, at *7–8 (emphasis added). 55 The District

Court found that the remaining Bennett factors also counseled the

approval of the Settlement Agreement. Hence, the District Court

approved it.

On the attorney’s fees issue, the District Court reviewed

Class Counsel’s July 24, 2020, motion anew and fixed their fees at

$7 million—20% of the $35 million it treated as a common fund.

Last, the District Court reviewed the scope of the release

contained in the Settlement Agreement given by Class Members

who did not opt-out.56 It cited the following release provisions:

55 On the other hand, had Class Counsel waited for the Supreme Court’s deci-

sion in Facebook and the decision was favorable to their position, they would

have been in a position to negotiate a settlement far in excess of the up to $35

million GoDaddy offered.

The District Court appeared unaware of the Herrick court’s resolution of

the ATDS issue in favor of GoDaddy and that the 3Seventy Platform GoDaddy

used in Drazen/Bennett was the same 3Seventy Platform it used in Herrick. The

District Court also seemed unaware that Herrick’s claim against GoDaddy in

Drazen/Bennett would be subject to GoDaddy’s res judicata defense based on

the summary judgment GoDaddy obtained in Herrick. “Under well-settled

federal law, the pendency of an appeal does not diminish the res judicata effect

of a judgment rendered by a federal court.” Hunt v. Liberty Lobby, Inc., 707 F.2d

1493, 1497 (D.C. Cir. 1983).

56 Only eleven class members opted out. The District Court’s decision there-

fore bound all but eleven of the approximately 1,237,000 Class Members.

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50 Opinion of the Court 21-10199

79. Upon the Effective Date, the Releasing Parties 57

shall automatically be deemed to have fully and irrev-

ocably released and forever discharged Defendant

and the Released Parties 58 from any and all liabilities,

rights, claims, actions, causes of action, demands,

damages, costs, attorney’s fees, losses, and remedies,

whether known or unknown, existing or potential,

suspected or unsuspected, liquidated or unliquidated,

legal, statutory, or equitable, that result from, arise

out of, are based upon, or relate to the Actions, or the

conduct, omissions, duties or matters at any time

from the beginning of the Class Period through the

57 “Releasing Parties” is defined in the Settlement Agreement:

Plaintiffs and all Settlement Class Members who do not timely

and properly opt-out of the Agreement, and each of their re-

spective executors, representatives, heirs, predecessors, as-

signs, beneficiaries, successors, bankruptcy trustees, guardi-

ans, joint tenants, tenants in common, tenants by the entire-

ties, agents, attorneys, representatives and all those who claim

through them or on their behalf.

Drazen, 2020 WL 8254868, at *15 n.12.

58 “Released Parties” is defined in the Settlement Agreement:

[J]ointly and severally, and individually and collectively, De-

fendant and its past and present parents, predecessors, succes-

sors, affiliates, holding companies, subsidiaries, employees,

agents, attorneys, board members, assigns, partners, contrac-

tors, joint venturers, or third-party agents with which it has or

had contracts, and/or their affiliates.

Id. at *15 n.13.

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21-10199 Opinion of the Court 51

end of the Class Period that were or could have been

claimed, raised, or alleged in the Actions.

80. The Parties understand and acknowledge that this

Agreement constitutes a compromise and settlement

of disputed claims. No action taken by the Parties ei-

ther previously or in connection with the negotia-

tions or proceedings connected with this Agreement

shall be deemed or construed to be an admission of

the truth or falsity of any claims or defenses hereto-

fore made, or an acknowledgment or admission by

any party of any fault, liability or wrongdoing of any

kind whatsoever.

81. Neither the Agreement, nor any act performed or

document executed pursuant to or in furtherance of

the Agreement: (a) is or may be deemed to be, or may

be used as, an admission of, or evidence of, the valid-

ity of any claim made by the Plaintiffs or Settlement

Class Members, or any wrongdoing or liability on the

part of the Released Parties; or (b) is or may be

deemed to be, or may be used as, an admission of, or

evidence of, any fault or omission on the part of any

of the Released Parties, in the Actions, or in any pro-

ceeding in any court, administrative agency or other

tribunal.

82. In addition, with respect to the subject matter of

this Actions, by operation of the entry of the Final

Approval Order, Plaintiffs and each Settlement Class

Member, and each of their respective successors, as-

signs, legatees, heirs, and personal representatives, ex-

pressly waive any and all rights or benefits they may

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52 Opinion of the Court 21-10199

now have, or in the future may have, under any law

relating to the releases of unknown claims, including,

without limitation, Section 1542 of the California

Civil Code . . . .

By operation of the entry of the Final Approval Or-

der, Plaintiffs and each Settlement Class Member,

shall be deemed to have waived any and all provisions,

rights, and benefits conferred by any law of any state

or territory of the United States or any foreign coun-

try, and any and all principles of common law that are

similar, comparable, or equivalent in substance or in-

tent to Section 1542 of the California Civil Code.

83. To the extent permitted by law, this Agreement

may be pleaded as a full and complete defense to, and

may be used as the basis for an injunction against, any

action, suit, or other proceeding that may be insti-

tuted, prosecuted, or attempted in breach of or con-

trary to this Agreement.

Id. at *15.

Normally, in a settlement like the one proposed here in

which the issue of liability is not resolved, the plaintiff gives the

defendant a release for all of the claims asserted against the defend-

ant in the plaintiff’s complaint and any claims the plaintiff could

have asserted because they arose out of or stemmed from the fac-

tual basis of the claims the plaintiff’s complaint asserted. 4 William

B. Rubenstein, Newberg & Rubenstein on Class Actions § 18:19

(6th ed. Nov. 2023 update). This is an expression of the “identical

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21-10199 Opinion of the Court 53

factual predicate” doctrine. Id. We take the following passage of

the District Court’s December 23 order as applying that doctrine:

The Court finds that the release provision “properly

settles all matters between the class members and re-

leased parties” as a result of the GoDaddy’s conduct

as identified in the Settlement Agreement, that the re-

lease covers “claims based on the same factual predi-

cate as the litigation being settled” and “is tailored to

prevent the relitigation of settled questions at the core

of this class action.” Greco, 635 Fed. Appx. 628, 635–

36 (11th Cir. 2015) (citing In re Corrugated Container

Antitrust Litig., 643 F.2d 195, 221 (5th Cir. 1981) (for

the premise that the federal court “may release not

only those claims alleged in the complaint and before

the court, but also claims which could have been al-

leged by reason of or in connection with any matter

or fact set forth or referred to in the complaint”)).

Drazen, 2020 WL 8254868, at *16. This language reduced the reach

of the release provisions of the proposed Settlement Agreement,

effectively amending the Agreement.

II. Legal Standard

We review for an abuse of discretion the approval of a class

action settlement, class certification, and an award of reasonable

attorney’s fees. Ault v. Walt Disney World Co., 692 F.3d 1212, 1216

(11th Cir. 2012); In re Equifax Inc. Customer Data Sec. Breach Litig., 999

F.3d 1247, 1278 (11th Cir. 2021). “Rule 23 grants district courts

broad discretion to manage class actions.” In re Equifax, 999 F.3d at

1266 (citing In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088,

USCA11 Case: 21-10199 Document: 145-1 Date Filed: 07/16/2024 Page: 54 of 124

54 Opinion of the Court 21-10199

1096 (5th Cir. 1977) 59 (“In the management of class actions, [Rule]

23 necessarily vests the district courts with a broad discretion to en-

able efficacious administration of the course of proceedings before

it.”)). “Because of the potential for abuse, a district court has both

the duty and the broad authority to exercise control over a class

action and to enter appropriate orders governing the conduct of

counsel and parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981).

An abuse of discretion occurs when the district court rests

its decision on findings of fact that are clearly erroneous or when

it incorrectly applies legal principles. Klay v. United Healthgroup, Inc.,

376 F.3d 1092, 1096 (11th Cir. 2004). It stands to reason that an

abuse would occur in a Rule 23(b)(3) class action when the district

court breaches its fiduciary duty to the absent class members.60 We

review questions of statutory interpretation de novo. Redus Fla.

Com., LLC v. Coll. Station Retail Ctr., LLC, 777 F.3d 1187, 1191 (11th

Cir. 2014).

III. Discussion

Pinto’s appeal challenges the District Court’s approval of the

proposed Settlement Agreement and its order granting Class

Counsel’s motion for attorney’s fees. Pinto contends that, given

the District Court’s breach of its independent fiduciary duty to the

59 “In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),

[we] adopted as binding precedent all decisions of the former Fifth Circuit

handed down prior to October 1, 1981.” Christ v. Beneficial Corp., 547 F.3d

1292, 1297 n.8 (11th Cir. 2008).

60 This is discussed in Section III.A.i.

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21-10199 Opinion of the Court 55

absent class members, we should refrain from rewarding Class

Counsel for organizing the settlement in a way that prevents the

return of excess fees to the class. Pinto advocates for the vacation

of the settlement but, at a minimum, we should make clear that

attorneys are not entitled to large fee awards that cannot withstand

CAFA scrutiny.

We conclude that the District Court abused its discretion in

handling these consolidated cases by erroneously applying the con-

trolling legal principles and rules of law, including its fiduciary duty

to the absent class members. These errors tainted the District

Court’s Rule 23(e)(1) implicit finding on June 9, 2020, that the par-

ties had presented the District Court with evidence sufficient to en-

able it to decide whether to give notice to the proposed class—that

is, a Rule 23(c)(2) notice that would afford the absent class members

information sufficient to enable them to decide whether to opt-out

of the proposed settlement. The errors also infected the District

Court’s Rule 23(e)(2) finding, after a fairness hearing, that the pro-

posed settlement was fair, reasonable, and adequate and that $7

million constituted a reasonable attorney’s fee for the worked Class

Counsel performed.

Below, we discuss three critical areas in which the District

Court abused its discretion. The first area concerns the application

of Rule 23(e)(1) and (2). The second concerns the application of

Rule 23(c)(2) and the principles of due process it implements in di-

recting that notice of the proposed settlement be sent to the Class

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56 Opinion of the Court 21-10199

Members. The third area concerns the application of the law in

granting Class Counsel’s motion for attorney’s fees.

A. Issues Related to Rule 23(e)

We begin our discussion by analyzing whether the District

Court and Class Counsel complied with Rule 23(e).

i. Rule 23(e) and the District Court’s Fiduciary Duties

“Under Rule 23(e) the district court acts as a fiduciary who

must serve as a guardian of the rights of absent class members.” In

re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d

768, 785 (3d Cir. 1995) (quoting Grunin v. Int’l House of Pancakes, 513

F.2d 114, 123 (8th Cir. 1975)); In re Equifax, 999 F.3d at 1265 (explain-

ing that the district court “takes on a type of fiduciary role for the

class”).

Prior to class certification, “[a] district court must conduct a

rigorous analysis of the [R]ule 23 prerequisites before certifying a

class.” Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).

“Although the trial court should not determine the merits of the

plaintiffs’ claim at the class certification stage, the trial court can

and should consider the merits of the case to the degree necessary

to determine whether the requirements of Rule 23 will be satis-

fied.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 n.15

(11th Cir. 2003). Moreover, in deciding whether to certify a class,

the district court “may look past the pleadings to determine

whether the requirements of [R]ule 23 have been met.” Castano,

84 F.3d at 744. “Going beyond the pleadings is necessary, as a court

must understand the claims, defenses, relevant facts, and applicable

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21-10199 Opinion of the Court 57

substantive law in order to make a meaningful determination of

the certification issues.” Id.

As a fiduciary, the court must take steps “to ensure the set-

tlement is ‘noncollusive in nature.’” In re Equifax, 999 F.3d at 1265

(quoting Newberg § 13:40). We direct “district judges to exercise

‘careful scrutiny’ in order to ‘guard against settlements that may

benefit the class representatives or their attorneys at the expense of

absent class members.’” Id. (quoting Holmes v. Cont’l Can Co., 706

F.2d 1144, 1147 (11th Cir. 1983)).

The district court’s role as a fiduciary reaches its zenith once

class counsel moves the court for an award of attorney’s fees. At

“the fee-setting stage, ‘[class] counsel’s understandable interest in

getting paid the most for its work representing the class’ comes into

conflict ‘with the class’[s] interest in securing the largest possible

recovery for its members.’” Johnson v. NPAS Sols., LLC, 975 F.3d

1244, 1252–53 (11th Cir. 2020) (quoting In re Mercury Interactive

Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 2010)). Thus, the district

court is under an obligation to serve as a fiduciary for the class

plaintiffs, ensuring that the class has the chance to advocate for its

own best interests. Id. at 1253. “The district court cannot properly

play its fiduciary role unless—as in litigation generally—class coun-

sel’s fee petition has been fully and fairly vetted.” Id.

Rule 23(e) also addresses the notice of proposed settlement

to the class and standards for a district court’s approval of a class

action settlement. Rule 23(e)(1) speaks to the information the par-

ties must present to district court to enable the court to decide

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58 Opinion of the Court 21-10199

whether to direct notice of the proposed settlement “in a reasona-

ble manner to all class members who would be bound by the pro-

posal.” Fed. R. Civ. P. 23(e)(1)(A)–(B). The information must be

sufficient to enable the court to find that it “will likely be able to

approve the proposal under Rule 23(e)(2)[] and certify the class for

purposes of judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(B).

The word “likely” when used in this context means that the

information the parties provide the court creates the probability

that, by the time the court convenes the Rule 23(e)(2) hearing, it

will approve the proposal. In doing so, the court will consider the

class members’ responses to the Rule 23(c)(2) notice and any other

evidence bearing on whether the proposal is fair, reasonable, and

adequate that may not have been before the court when it consid-

ered the issue the first time around. Included in such other evi-

dence is the information the court uncovers in its fiduciary role in

focusing on the negotiation process that led to the settlement pro-

posal, to preclude the possibility of collusion. See Malchman v. Da-

vis, 706 F.2d 426, 433 (2d Cir. 1983).

Where, as here, a settlement is negotiated

[p]rior to formal class certification, there is an even

greater potential for a breach of fiduciary duty owed

the class during settlement. Accordingly, such agree-

ments must withstand an even higher level of scru-

tiny for evidence of collusion or other conflicts of in-

terest than is ordinarily required under Rule 23(e) be-

fore securing the court’s approval as fair.

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21-10199 Opinion of the Court 59

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir.

2011); Roes, 1-2 v. SFBSC Mgmt., Inc., 944 F.3d 1035, 1043 (9th Cir.

2019); In re Gen. Motors, 55 F.3d at 805 (courts must be “even more

scrupulous than usual in approving settlements where no class has

yet been formally certified”); Mars Steel Corp. v. Cont’l Ill. Nat’l Bank

& Tr. Co. of Chicago, 834 F.2d 677, 681 (7th Cir.1987) (Posner, J.)

(“[W]hen class certification is deferred, a more careful scrutiny of

the fairness of the settlement is required.”); Weinberger v. Kendrick,

698 F.2d 61, 73 (2d Cir. 1982) (Friendly, J.) (reviewing courts must

employ “even more than the usual care”); see also Manual for Com-

plex Litig. § 21.612 (4th ed. 2004).

Rule 23(e)(2) speaks to what the district court must consider

in order to find that the proposed class action settlement is fair, rea-

sonable, and adequate. The court must consider the following:

(A) [whether] the class representatives and class counsel

have adequately represented the class;

(B) [whether] the proposal was negotiated at arm’s length;

(C) [whether] the relief provided for the class is adequate,

taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of

distributing relief to the class, including the

method of processing class-member claims;

(iii) the terms of any proposed award of attorney’s

fees, including timing of payment; and

(iv) any agreement required to be identified under

Rule 23(e)(3); and

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60 Opinion of the Court 21-10199

(D) [and whether] the proposal treats class members equita-

bly relative to each other.

Fed. R. Civ. P. 23(e)(2).

In sum, the district court’s obligations under Rule 23(e) and

as a fiduciary for the absent class members essentially coincide.

ii. The District Court Erroneously Approved the Settlement

Agreement as Fair, Reasonable, and Adequate

Because the District Court failed to apply the latest version

of Rule 23(e)(2) when determining whether the proposed settle-

ment was fair, reasonable, and adequate, it abused its discretion. As

we point out, there are also other reasons why the proposed settle-

ment would not pass Rule 23(e)(2) muster.

1. 2018 Amendment to Rule 23(e)(2)

As an initial matter, it was an abuse of discretion for the Dis-

trict Court to approve the settlement as fair, reasonable, and ade-

quate without explicitly considering the standards in Rule

23(e)(2)(A)–(D), which were added in the 2018 amendment to the

Rule. See Briseño v. Henderson, 998 F.3d 1014, 1026–27 (9th Cir. 2021)

(reversing district court for failure to apply new Rule 23(e)(2) in ad-

dition to its Circuit’s caselaw factors); cf. Williams v. Reckitt Benckiser

LLC, 65 F.4th 1243, 1261 (11th Cir. 2023) (instructing a district court

on remand, for other reasons, to consider the 2018 amendments to

Rule 23(e)(2) when doing the fair, reasonable, and adequate assess-

ment of the class-action while citing Briseño for support).

However, “[t]he 2018 amendment to Rule 23(e)(2) is not

meant ‘to displace’ the factors previously identified by courts in

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21-10199 Opinion of the Court 61

reviewing class action settlement agreements, but ‘rather to focus

the court and the lawyers on the core concerns of procedure and

substance that should guide the decision whether to approve the

proposal.’” Ponzio v. Pinon, 87 F.4th 487, 494–95 (11th Cir. 2023)

(quoting Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018

amendment). Thus, courts should continue to apply the Bennett

factors as well. See id. (continuing to apply the Bennett factors and

noting how the Rule’s four core concerns overlap nicely with the

Bennett factors); In re Equifax, 999 F.3d at 1273 (applying both the

post-2018 Rule 23(e)(2) standards as well as the Bennett factors); see

also In re Nat’l Prescription Opiate Litig., 976 F.3d 664, 685 & n.19 (6th

Cir. 2020) (Moore, J., dissenting) (dissenting on a different issue but

noting that the 2018 amendments to Rule 23(e)(2) “merely codified

existing practices”).

2. Overbroad Release Provision

In its final judgment and order approving the class action set-

tlement, the District Court attempted to cure the overbroad-release

problem—while coincidentally preserving Class Counsel’s $7 mil-

lion attorney’s fees award—by invoking the “identical factual pred-

icate” doctrine.61 But in applying that doctrine, the District Court

went too far, in essence, amending the release provisions in a ma-

terial way: to limit their sweep to the claims Plaintiffs’ alleged in

the Complaint against GoDaddy. Although a district judge must

assess a proposed settlement agreement for fairness, “[t]he judge

61 See supra Section I.E.iv. (discussing the release provisions).

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62 Opinion of the Court 21-10199

cannot rewrite the agreement.” Newberg § 13:46 (citing Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). “[T]he judicial

role in reviewing a proposed settlement is . . . limited to approving

the proposed settlement, disapproving it, or imposing conditions

on it.” Id.

We sense that the District Court was disturbed by the

breadth of the release provisions, especially the provision identify-

ing the parties released in addition to GoDaddy: “Defendant and its

past and present parents, predecessors, successors, affiliates, hold-

ing companies, subsidiaries, employees, agents, attorneys, board

members, assigns, partners, contractors, joint venturers, or third-

party agents with which it has or had contracts, and/or their affili-

ates.” Drazen, 2020 WL 8254868, at *15 n.13.

But, the District Court could not amend the release provi-

sions contained in the Settlement Agreement. Having concluded

that the Settlement Agreement could not be approved as written,

precedent required the District Court to deny the proposed settle-

ment and deny Class Counsel’s motion for attorney’s fees. The Dis-

trict Court should have disapproved the parties’ Settlement Agree-

ment and vacated its June 9 order certifying a class for settlement

only.

3. Inadequate Relief

The District Court’s role as a fiduciary for the absent Class

Members heightened the moment the Plaintiffs’ lawyers presented

it with the Settlement Agreement. This is because the Agreement

provided for preferential treatment for their clients—Drazen,

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21-10199 Opinion of the Court 63

Bennett, and Herrick—and guaranteed that their attorney’s fees of

up to $10.5 million would not be reduced even if the Class Mem-

bers’ claims totaled more than $35 million less the attorney’s fees,

administration costs, court costs, and the service fees. The District

Court became a fiduciary because the Plaintiffs and their lawyers

were at odds with the absent Class Members.

Under these circumstances, the District Court was required

to ensure that the proposed settlement agreement was not collu-

sive. To do that, the District Court had to make a rigorous analysis

of the showing the Plaintiffs’ lawyers made under Rule 23(e)(1). It

had to “understand the claims, defenses, relevant facts, and appli-

cable substantive law in order to make a meaningful determination

of the certification issues.” Castano, 84 F.3d at 744. The June 9 or-

der preliminarily approving the proposed settlement agreement as

fair, reasonable, and adequate indicated on its face that the Plain-

tiff’s lawyers had failed to satisfy Rule 23(e)(1) and the District

Court failed to conduct the rigorous analysis required. Here is the

sum and substance of the District Court’s basis for finding that the

Plaintiffs’ Rule 23(e)(1) showing established the likelihood that the

District Court would approve the Plaintiffs’ settlement proposal at

the Rule 23(e)(2) fairness hearing:

Plaintiffs Jason Bennett and Susan Drazen move

for preliminary approval of the class action settle-

ment agreement. (Doc. 45 at 1-2). A class action can

be settled “only with the court's approval.” Fed. R.

Civ. P. 23(e). Final approval may be given only after

class notice and a hearing. Id. However, the Court

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64 Opinion of the Court 21-10199

must first “make a preliminary evaluation of the fair-

ness of the settlement before directing that notice be

given to the settlement class.” O’Connor v. Worthington

PJ, Inc., 2017 WL 6762436, *3 (M.D. Fla. 2017) (citing

Smith v. William Wrigley Jr. Co., 2010 WL 2401149 at *2

(S.D. Fla. 2010)). “Preliminary approval is not binding,

and it is granted unless a proposed settlement is obvi-

ously deficient.” Id. (internal quotes omitted). “Pre-

liminary approval is appropriate where the proposed

settlement is the result of the parties’ good faith ne-

gotiations, there are no obvious deficiencies and the

settlement falls within the range of reason.” Id. (citing

Fuentas Cordova v. R & A Oysters, Inc., 2016 WL

5219634, *1 (S.D. Ala. 2016)); Smith, 2010 WL 2401149

at *2 (same).

First, the Court is satisfied that the settlement is

the result of the parties’ good faith negotiations. The

settlement agreement was the result of an arms-

length negotiation by both parties while represented

by counsel and facilitated by the Honorable Wayne

Anderson. (Doc. 20 at 12; Doc. 45-1 at 3). The settle-

ment was also reached after discovery and after sev-

eral months of negotiations. (Doc. 20 at 13).

Second, the Court is satisfied that there are no ob-

vious deficiencies and the settlement falls within the

range of reason. During settlement negotiations, Go-

Daddy agreed to make up to $35,000,000 available: 1)

to pay individuals who submit valid claim forms; 2)

for attorney’s fees; 3) for a service award to the Class

Representatives; 4) for costs and expenses of

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21-10199 Opinion of the Court 65

litigation. (See Doc. 45-1 at 47). Each Settlement Class

Member who submits a valid claim is eligible to re-

ceive either a $35 cash award or a $150 voucher that

can be used for GoDaddy services or products. (Id.).

The parties also agreed, based on how many valid

claims are submitted, that it is possible each Settle-

ment Class Member’s Award will be reduced on a pro

rata basis to cover settlement administration costs, at-

torneys’ fees, a service award to the Class Represent-

atives, and costs and expenses of litigation. (Id.). Ac-

cordingly, the Court finds the Settlement Agreement

is preliminarily approved as fair, reasonable, and ade-

quate.

Order at 2–3, Drazen (S.D. Ala. June 9, 2020), ECF No. 49.

It is apparent that the District Court found the Plaintiff’s

Rule 23(e)(1) showing adequate based solely on a reading of the

proposed Settlement Agreement and the parties’ good faith and

arms-length negotiations. Nothing in the record indicates that the

District Court considered any other evidence such as the size of the

class and the composition of the Rule 23(c)(2) notice the class

would receive. Depending on what the notice represented, a large

class might generate a flood of claims that would be reduced pro

rata to pay the Plaintiffs’ lawyers, incentive awards, and administra-

tive expenses.

The information the District Court considered at the Rule

23(e)(2) hearing painted a different picture regarding whether its

approval would benefit Class Counsel at the expense of absent

Class Members. The District Court’s approval of the Agreement

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66 Opinion of the Court 21-10199

would bind about 98.1% of class members but they would receive

absolutely nothing in exchange for giving GoDaddy overbroad re-

leases, and Class Counsel would receive $7 million in attorney’s

fees. The District Court did express concern about the lack of Class

Member claims—only 1.9% of the class—but it expressed no con-

cern, either at the December 14 hearing or in its December 23 or-

der, about the 98.1% of the Class Members who received nothing

but gave GoDaddy overbroad releases because they neglected to

opt-out of the settlement.

Perhaps the failure of 98.1% to opt out and thereby avoid

giving GoDaddy and its affiliates the releases was due to the lan-

guage in the Long Form Notice about opting out of the settlement:

To exclude yourself from the settlement, you must

mail a timely letter to the Settlement Administrator at

Drazen v. GoDaddy.com, LLC, Settlement Administra-

tor, P.O. Box 2730, Portland, OR 97208-2730, post-

marked by August 31, 2020. Your request to be ex-

cluded from the settlement must be personally signed

by you under penalty of perjury and contain a statement

that indicates your desire to be “excluded from the Settle-

ment Class,” and that, absent of excluding yourself or

“opting out,” you are “otherwise a member of the Settle-

ment Class in the proposed settlement of Drazen v. Go-

Daddy.com, LLC, Case No. 19-cv-00563 (S.D. Ala.), Ben-

nett v. GoDaddy.com, LLC, Case No. 1:20-cv-00094 (S.D.

Ala.), and Herrick v. GoDaddy.com, LLC, Case No. 2:16-

cv-00254 (D. Ariz.), appeal pending 18-16048 (9th

Cir.).” The request should also include your full

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21-10199 Opinion of the Court 67

name, address, telephone number(s), and GoDaddy

account number(s).

App. Exhibit B at 3 (emphasis added).

How many Class Members would take the time and effort

to compose a letter to comply with that opt-out instruction? How

many would be aware of the elements of the crime of perjury, like

materiality? And how many would think they should consult a law-

yer before signing a letter under penalty of perjury?

Given these stringent opt-out requirements, and the Settle-

ment Administrator’s apparent discretionary authority to reject a

Class Member’s opt-out letter as insufficient, it is reasonable to in-

fer that the Settlement Agreement was deliberately structured by

the parties’ lawyers in a way that would ensure that no class mem-

bers would opt out and the entire class would therefore be bound

by its sweeping release provisions.

As the absent Class Members’ fiduciary, the District Court

should have noted the inference. It bore on the fairness and rea-

sonableness of the proposed Settlement Agreement. The District

Court had the fairness of the settlement to the absent Class Mem-

bers in mind when it said this to Class Counsel at the fairness hear-

ing: “So you are asking me to give you 25 percent of a $35 million

settlement, but if you never intended for it to be really $35, then

that’s not really the value of the settlement.”

To sum it up, the District Court materially breached its duty

to the absent Class Members from June 9, 2020—when it prelimi-

narily approved the settlement agreement that advanced the

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68 Opinion of the Court 21-10199

lawyers’ interests at the expense of the absent Class Members—to

December 23, 2020, when it certified the class, approved the pro-

posed Settlement Agreement, and granted Class Counsel’s motion

for attorney’s fees.

iii. Class Counsel Induced the District Court’s Error

Rule 23(e)(1)(A) placed on the parties the burden of provid-

ing the District Court with “information sufficient to enable it to

decide whether to give notice of the propose[d Settlement Agree-

ment] to the class.” Fed. R. Civ. P. 23(e)(1)(A). Implicit in this bur-

den is the duty to provide the District Court with information suf-

ficient to satisfy the court’s obligations under Rule 23(c)(2), specifi-

cally (c)(2)(B)(iii) here, and Rule 23(e)(2). See Fed. R. Civ. P. 23(e)(1)

advisory committee's note to 2018 amendment; Newberg §§ 13:12,

39. Class Counsel undertook to carry this burden for the parties.

As it turned out, the information they provided the District Court

was materially insufficient to enable the court to comply with Rule

23(c)(2)(B)(iii). 62 Class Counsel induced the non-compliance. The

information, or lack thereof, caused the District Court to err.

Rule 23(e)(2) required the District Court to determine

whether the proposed Agreement was “fair, reasonable, and ade-

quate after considering,” among other things, whether “the class

representatives and class counsel have adequately represented the

class.” Fed. R. Civ. P. 23(e)(2)(A). While Class Counsel were asking

the District Court to make this determination, they were

62 See infra Section III.B. (discussing omissions in the notice).

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21-10199 Opinion of the Court 69

representing each of the Plaintiffs who sought a service award of

$5,000. They were also representing the absent Class Members.

“One cardinal rule defines the scope of counsel’s ethical ob-

ligations in class actions: class counsel owes a duty to the class as a

whole and not to any individual members of the class.” Med. &

Chiropractor Clinic, Inc. v. Oppenheim, 981 F.3d 983, 991 (11th Cir.

2020); NPAS Sols., 975 F.3d at 1252. Class Counsel, in seeking $10.5

million in fees, were representing themselves. They were the ab-

sent Class Members’ adversaries. At the same time, Class Counsel

were in effect representing GoDaddy in obtaining overbroad re-

leases of GoDaddy and scores of “affiliates” from claims yet to ma-

terialize. A class of 1.26 million members had to be bound by those

releases. Class Counsel had agreed to the release provisions Go-

Daddy wanted. Their hope for attorney’s fees depended on their

agreement.

The District Court erred in finding that Class Counsel’s rep-

resentation of the absent Class Members was adequate because it

failed to “adopt the role of a skeptical client and critically examine

. . . the proposed settlement terms.” See Manual for Complex Liti-

gation § 21.61. Likewise, it did not “exercise ‘careful scrutiny’ in

order to ‘guard against settlements that may benefit the class rep-

resentatives or their attorneys at the expense of absent class mem-

bers.’” See In re Equifax Inc., 999 F.3d at 1265 (quoting Holmes, 706

F.2d at 1147). Finally, it didn’t see the conflict the lawyers had vis-

à-vis the class members.

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70 Opinion of the Court 21-10199

B. The Notice Did Not Comply with Rule 23(c) and Due Process

We next explore the deficiencies with the Notice. It failed to

satisfy Rule 23(c)(2) and violated the due process rights of absent

Class Members. Moreover, it misrepresented and therefore dis-

torted the terms of the Settlement Agreement. Because Pinto did

not raise this specific argument regarding the notice, we first pause

to explain why we consider it.

i. Review of Issues Not Raised Below or Briefed on Appeal

“Ordinarily an appellate court does not give consideration

to issues not raised below.” Hormel v. Helvering, 312 U.S. 552, 556

(1941). We maintain “a healthy regard for the necessity and desir-

ability of having errors corrected at [the] trial [court] rather than

on appeal.” Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 286 (5th

Cir. 1975). “However, this principle is not unyielding.” Burch v. P.J.

Cheese, Inc., 861 F.3d 1338, 1352 (11th Cir. 2017). “[O]n review[,] we

always possess the power to consider errors to which no objection

was made.” Edwards, 512 F.2d at 286. Indeed, “[t]here may always

be exceptional cases or particular circumstances which will prompt

a reviewing or appellate court, where injustice might otherwise re-

sult, to consider questions of law which were neither pressed nor

passed upon by the court . . . below.” Hormel, 312 U.S. at 557; see

also Dowell, Inc. v. Jowers, 166 F.2d 214, 221 (5th Cir. 1948) (“The

power of an appellate court on its own motion to consider grounds

of error not raised below is not one which should be exercised in

an ordinary case.” (citation omitted)).

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21-10199 Opinion of the Court 71

As Justice Black once explained,

[r]ules of practice and procedure are devised to pro-

mote the ends of justice, not to defeat them. A rigid

and undeviating judicially declared practice under

which courts of review would invariably and under

all circumstances decline to consider all questions

which had not previously been specifically urged

would be out of harmony with this policy. Orderly

rules of procedure do not require sacrifice of the rules

of fundamental justice.

Hormel, 312 U.S. at 557.

Despite Pinto’s failure to raise these objections about the no-

tice, either to the District Court or on appeal, “[w]e think that in

the interest of justice the court here must act upon its own mo-

tion.” See Dowell, 166 F.2d at 221. The District Court’s error in

approving the settlement, “was of such magnitude, . . . particularly

in the circumstances of this case,” in which it had a fiduciary duty

to protect absent class members, “to have seriously prejudiced” ab-

sent class members’ ability to make an informed decision about the

settlement. See Edwards, 512 F.2d at 286. And when we consider

GoDaddy and Class Counsel’s tactic to rush the settlement and ob-

tain an overly broad release of the Class Members’ claims, “we are

convinced that substantial injustice has been done in this case. We

emphasize that we think that the sort of strategy employed by [Go-

Daddy and class] counsel has no place in the federal district court.”

See Hall v. Freese, 735 F.2d 956, 961 (5th Cir. 1984).

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72 Opinion of the Court 21-10199

ii. The District Court’s Rule 23(c)(2) and Due Process Errors

Rule 23(c)(2) 63 prescribes the notice a class action court must

direct to the class proposed to be certified. It is designed to fulfill

the fundamental requirements of due process.

The Advisory Committee’s Note to Rule 23 reinforces

this conclusion. The Advisory Committee described

subdivision (c)(2) as “not merely discretionary” and

added that the “mandatory notice pursuant to subdi-

vision (c)(2) . . . is designed to fulfill requirements of

due process to which the class action procedure is of

course subject.” The Committee explicated its incor-

poration of due process standards by citation to Mul-

lane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

70 S.Ct. 652, 94 L.Ed. 865 (1950), and like cases.

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173–74 (1974) (citations

omitted). 64 One due process right Rule 23(c)(2) protects is the class

63 See supra note 38.

64 We have previously cabined our analyses of class action settlements “on the

federal class action rule rather than on the mandates of the due process

clause.” Holmes v. Cont’l Can Co., 706 F.2d 1144, 1160 (11th Cir. 1983). And we

have acknowledged that “[t]he Supreme Court employed a similar approach

in Eisen.” Id. That said, nothing prohibits us from employing a due process

analysis here. After all, even “[i]n Eisen, the Supreme Court endorsed the Ad-

visory Committee’s position that the notice provisions of Rule 23 must be in-

terpreted so as to bring the conduct of class litigation within the minimum req-

uisites of due process.” Johnson v. Gen. Motors Corp., 598 F.2d 432, 436 (5th Cir.

1979) (emphasis added).

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21-10199 Opinion of the Court 73

members’ right to be informed of “the claims, issues, or defenses”

involved in the action. Fed. R. Civ. P. 23(c)(B)(iii).

No federal court at any level has yet weighed in on whether

Rule 23(c)(2)(B)(iii) requires the notice to contain one of or all of

“the claims, issues, or defenses.” Let’s look at two possible inter-

pretations. One possibility is that notice would satisfy Rule

23(c)(2)(B)(iii) if it contained just the claims, just the issues, or just

the defenses. Alternatively, notice would satisfy the Rule only if it

contained all of the claims, and all of the issues, and all of the de-

fenses. This first definition gives “or” a disjunctive meaning

whereas the second gives “or” a conjunctive meaning. We think

the second, conjunctive meaning, provides the correct interpreta-

tion of Rule 23(c)(2)(B)(iii).

The Supreme Court recently decided that the word “and”

has a disjunctive meaning in 18 U.S.C. § 3553(f )(1), despite nor-

mally having a conjunctive meaning, “by reviewing text in con-

text.” Pulsifer v. United States, 144 S.Ct. 718, 726 (2024). Though the

ordinary meaning of “or” is disjunctive, context can dictate other-

wise. See United States v. Garcon, 54 F.4th 1274, 1298 (2022) (Branch,

J., dissenting) (citing Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 70 (2012); Am. Bankers Ins. Grp.

v. United States, 408 F.3d 1328, 1332 (11th Cir. 2005)), abrogated in

part by Pulsifer, 144 S.Ct. 718 (2024). In fact, courts often construe

“or” to have a conjunctive meaning due to context in which the

“or” appears. Id. at 1298–99 (collecting cases from the Supreme

Court, Former Fifth, and Eleventh Circuit); see also id. at 1291

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74 Opinion of the Court 21-10199

( Jordan, J., dissenting) (discussing “[t]he legal interchangeability be-

tween ‘and’ and ‘or’” in English courts, recognized by the Supreme

Court in 1865, and affirmed several times by our Court).

The context here makes clear “or” has a conjunctive mean-

ing in Rule 23(c)(2)(B)(iii). To start, the “claims, issues, or defenses”

language in Rule 23(c)(2)(B)(iii) intentionally parallels Rule

23(c)(1)(B). In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d

24, 40 n.17 (1st Cir. 2009). Rule 23(c)(1)(B) requires that “[a]n order

that certifies a class action must define the class and the class claims,

issues, or defenses, and must appoint class counsel.” Fed. R. Civ. P.

23(c)(1)(B). In this section of the Rule, “or” must be disjunctive

because a class can consist of just a claim, just an issue, or just a

defense. See Fed. R. Civ. P. 23(a)(3) (“the claims or defenses of the

class”); Wachtel ex rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d

179, 187–88 (3d Cir. 2006) (certification order must include “com-

plete list of the claims, issues or defenses to be treated on a class

basis”); Simpson v. Dart, 23 F.4th 706, 713 (7th Cir. 2022) (class’s def-

inition is not synonymous with its claims). Yet, it makes sense that

the 2003 amendment to Rule 23 copied this language to (c)(2)(B)’s

notice content requirements—so that class members know, “in

plain, easily understood language,” their legal rights that are being

handled by the class device.

Next, there is compelling evidence that “or” is conjunctive

in (c)(2)(B) unlike its sense in (c)(1)(B). A different context gives rise

to a different meaning. First, section (c)(1)(B) deals with the certi-

fication order’s content and thus primarily aids an appellate court

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21-10199 Opinion of the Court 75

in later reviewing whether the class certification order was proper.

See Wachtel, 453 F.3d at 186; see also Newberg § 7:26. On the other

hand, section (c)(2)(B) directs the notice’s content and thus primar-

ily aids class members in deciding whether they would like to opt

out of the (b)(3) class. See In re Nissan, 552 F.2d at 1104–05; New-

berg § 8:12. As such, (c)(2)(B) is meant to provide absent class

members with more, not less, information, so that they can make

an informed decision about opting-out or not. This is buttressed

with the Rule’s command to direct “the best notice that is practica-

ble.” Accordingly, it would make no sense to read (c)(2)(B)(iii)’s

“or” in a disjunctive sense and thus say that notice is sufficient

where it omits the claims and issues but includes information on

possible defenses. Or, more apt in this case, where notice may in-

form class members about their claims but provide no information

on the relevant issues.

A final note on this interpretation: if a class does not have

any defenses, notice containing only the claims and issues would

still be sufficient. This is because all of the “class . . . defenses”

amounts to nothing, and thus class members do not need to be told

of any more relevant information to satisfy Rule 23(c)(2)(B)(iii).

So again, to fulfill the due process principles upon which

Rule 23(c)(2) is based, Rule 23(c)(2)(B)(iii) mandates that the notice

a district court directs to a Rule 23(b)(3) class “clearly and concisely

state in plain, easily understood language . . . the class claims, is-

sues, or defenses.” In Section I.C.iii., we recited what the notice

revealed about the Class Members’ claims. It was sparse. It stated

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76 Opinion of the Court 21-10199

that the claims were founded on 47 U.S.C. § 227 violations. But the

notice failed to reveal that the claims could allow Class Members

to potentially recover $500 for each phone call or text message

made to each Class Member’s cell phone, or $1,500 if made will-

fully or knowingly; that the class consisted of over 1.26 million

members; and that GoDaddy’s liability exposure was more than

$600 million.

If the Class Members had known that GoDaddy was getting

rid of a $600 million exposure for up to $35 million less $10.5 mil-

lion in attorney’s fees (as if paid to the lawyers for eliminating the

exposure), they would have wondered why. And they would likely

have discovered why if the notice had informed them—that is, if

the District Court as fiduciary had ordered the notice to inform

them—of Facebook and the probability that their claims would be

worthless if Facebook were decided before the District Court could

approve the proposed Settlement Agreement.

The District Court neglected its duty in failing to inform the

absent Class Members about the Facebook issue: whether GoDaddy

used an ATDS in making the calls and sending the text messages.

This was the dispositive issue in the case. Both sides agreed that

this was so. Can there be any doubt that the District Court’s failure

to inform the Class Members denied them due process of law?

The Class Members were entitled to know that if the District

Court waited until the Supreme Court decided Facebook before

considering whether to approve the Settlement Agreement, the

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21-10199 Opinion of the Court 77

deal would probably have collapsed. 65 That is because if the Su-

preme Court ruled that a system materially similar to the one Go-

Daddy used was not an ATDS, the Class Members’ claims would

have vanished along with Class Counsel’s anticipated attorney’s

fees. On the other hand, if the Supreme Court ruled to the con-

trary, their claims would have a value well in excess of $35 in cash

or a $150 voucher, and so too Class Counsel’s right to attorney’s

fees.

For these reasons, we conclude that the District Court erred

in approving Class Counsel’s Short Form and Long Form Notices.66

65 When a trial court is told that the dispositive issue in the case is pending

decision in the appellate court (with jurisdiction to review the trial court’s

judgment), it is a rare occasion when the trial court does not stay proceedings

pending the appellate decision.

66 Rule 23(e)(4) arguably provided an opportunity for the District Court, in its

discretion, to send another round of notice after seeing such a low number of

claims or other issues. The Rule is called “New Opportunity to Be Excluded”

and states: “If the class action was previously certified under Rule 23(b)(3), the

court may refuse to approve a settlement unless it affords a new opportunity

to request exclusion to individual class members who had an earlier oppor-

tunity to request exclusion but did not do so.” Fed. R. Civ. P. 23(e)(4). An

unpublished opinion from our Circuit suggests 23(e)(4) does not apply in a

situation like the present one. See, e.g., In re HealthSouth Corp. Sec. Litig., 334

F.App’x 248, 254 n.12 (11th Cir. 2009) (noting that Rule 23(e)(4) “address[es] a

situation in which the class was certified prior to the approval of a settle-

ment”). District courts in Texas and California have come to similar conclu-

sions based on the Advisory Committee notes to the 2003 amendment. See

Slipchenko v. Brunel Energy, Inc., No. H-11-1465, 2015 WL 338358, at *6 (S.D.

Tex. Jan. 23, 2015) (quoting Fed. R. Civ. P. 23(e)(3) advisory committee’s note

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78 Opinion of the Court 21-10199

to 2003 amendment (emphasis added)) (“Rule 23(e)(3) [now (e)(4)] authorizes

the court to refuse to approve a settlement unless the settlement affords a new

opportunity to elect exclusion in a case that settles after a certification decision if

the earlier opportunity to elect exclusion provided with the certification notice has ex-

pired by the time of the settlement notice. A decision to remain in the class is likely

to be more carefully considered and is better informed when settlement terms

are known.”).

We are unpersuaded and think Rule 23(e)(4) allows for additional no-

tice in this situation. First, unpublished opinions are not binding precedent on

us. United States v. Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013) (citing 11th

Cir. R. 36-1, IOP 6). Second, the advisory committee note does not foreclose

this scenario, it just states that (e)(4) also provides an opportunity for additional

notice in that other scenario. Third, and related, if one did think the advisory

committee note cuts against using (e)(4) for notice in any scenario other than

the one it describes, it still would not be binding. Although the interpretations

in the advisory committee notes are highly persuasive, they are not binding.

See Horenkamp v. Van Winkle & Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005).

Finally, the plain text of (e)(4) clearly allows another round of notice for class

members to opt out, even in our scenario. Further, Rule 23(e)(1) provides for

notice when there is a proposed settlement, so it would be superfluous to read

(e)(4) as providing the same notice for the same reasons as the notice proce-

dures of (e)(1). This reading of (e)(4) is supported by a variety of sources, in-

cluding other parts of the advisory committee note, the FJC manual, a leading

legal treatise, and an opinion by then-Judge Ketanji Brown J

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