# Susan Drazen v. Juan Pinto

> Court of Appeals for the Eleventh Circuit · July 16, 2024 · 106 F.4th 1302

URL: https://www.frixlaw.com/law-library/cases/10471285

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** July 16, 2024
- **Citations:** 106 F.4th 1302
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** REH
- **Cited by:** 6 later opinions in the Frix Law Library

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## Opinion text

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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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21-10199 Opinion of the Court 5

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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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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21-10199 Opinion of the Court 9

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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21-10199 Opinion of the Court 11

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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21-10199 Opinion of the Court 13

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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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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16 Opinion of the Court 21-10199

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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21-10199 Opinion of the Court 17

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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21-10199 Opinion of the Court 19

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,
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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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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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10471285. Public record. Not legal advice.