Susan Drazen v. Mr. Juan Enrique Pinto
U.S. Court of Appeals for the Eleventh Circuit
Susan Drazen v. Mr. Juan Enrique Pinto, 101 F.4th 1223 (11th Cir. 2024)
Susan Drazen v. Mr. Juan Enrique Pinto
Opinion
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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.
TJOFLAT, Circuit Judge:
The consolidated class actions involved in this appeal 1 were
brought under the Telephone Consumer Protection Act of 1991
(TCPA), 47 U.S.C. § 227. 2 The Plaintiffs alleged that
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 ap-
peal. The District Court below “incorporated” Herrick into Drazen and Bennett,
and “resolved” Herrick’s claims against GoDaddy in the final judgment it en-
tered. 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,
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21-10199 Opinion of the Court 3
GoDaddy.com,3 LLC violated the TCPA 4 by using an automatic
(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.
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—
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4 Opinion of the Court 21-10199
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
....
(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.
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
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21-10199 Opinion of the Court 5
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
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;
(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:
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6 Opinion of the Court 21-10199
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
“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).
....
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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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
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.
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.
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8 Opinion of the Court 21-10199
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 be-
fore 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
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.
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.
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21-10199 Opinion of the Court 9
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 agree-
ment, certifying the class, granting Class Counsel’s motion for at-
torney’s fees, and entering the final judgment. We conclude that
it did in several ways. First, it failed to consider the 2018 amend-
ments to Rule 23(e)(2). The District Court also overlooked evi-
dence indicating that the settlement agreement was the product of
collusion, such as the overbroad release provision and inadequate
relief provided to the class relative to what Class Counsel and Go-
Daddy received. Next, the notice of the proposed settlement the
District Court ordered failed to inform the absent class members of
the “claims, issues, or defenses” in the Plaintiffs’ cases as required
by Rule 23(c)(2)(B)(iii), fundamental due process, and the Court’s
fiduciary obligation to the absent class members. Finally, the Dis-
trict Court erred in three ways when it calculated attorney’s fees
because it: (1) misapplied Rule 23(h), (2) treated the settlement as a
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
(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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10 Opinion of the Court 21-10199
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
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.
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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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 estab-
lishes the general legal standards applicable to our review. Part III
discusses why the District Court’s judgment must be vacated and
the cases remanded for further proceedings because the Court
failed to follow those standards. And Part IV concludes with a sum-
mary.
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12 Opinion of the Court 21-10199
Table of Contents
I. Background ................................................................... 14
A. Herrick’s TCPA Case in the District of Arizona .............14
B. Southern District of Alabama Proceedings After Herrick’s
Appeal .....................................................................................18
i. Bennett’s Case .................................................... 18
ii. Drazen’s Case ....................................................... 21
C. Preliminary Approval of the Proposed Settlement
Agreement, Class Certification, and Notice ...................................23
i. Preliminary Approval of the Proposed Settlement
Agreement and Conditional Class Certification .................. 23
ii. District Court’s Order Granting Class Counsel’s
Motion.................................................................................. 25
iii. Notice .................................................................. 27
D. Attorney’s Fees and Pinto’s Objections..........................30
i. Class Counsel’s Motion for Attorney’s Fees .......... 30
ii. The District Court’s Order ................................... 34
iii. Pinto’s Objection ................................................. 36
iv. The District Court’s Response to Pinto’s Objection
.............................................................................................. 37
E. Events Following Certiorari in Facebook .......................38
i. Class Counsel Informs the District Court About
Facebook ................................................................................ 38
ii. Class Counsel Moves for Final Approval of the
Proposed Settlement Agreement......................................... 40
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iii. District Court Hearing ........................................ 41
iv. The District Court’s Approval Order and Final
Judgment .............................................................................. 45
II. Legal Standard .............................................................. 52
III. Discussion ................................................................... 53
A. Issues Related to Rule 23(e) .........................................55
i. Rule 23(e) and the District Court’s Fiduciary Duties
.............................................................................................. 55
ii. The District Court Erroneously Approved the
Settlement Agreement as Fair, Reasonable, and Adequate . 59
iii. Class Counsel Induced the District Court’s Error
.............................................................................................. 67
B. The Notice Did Not Comply with Rule 23(c) and Due Process
...............................................................................................69
i. Review of Issues Not Raised Below or Briefed on
Appeal .................................................................................. 69
ii. The District Court’s Rule 23(c)(2) and Due Process
Errors ................................................................................... 71
C. Attorney’s Fees Were Not Calculated Properly ................78
i. Rule 23(h) .............................................................. 78
ii. Claims-made v. Common Fund Settlements ....... 80
iii. The Class Action Fairness Act Applies Because the
Settlement was a Coupon Settlement ................................. 87
IV. Conclusion ................................................................. 106
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14 Opinion of the Court 21-10199
I. Background
The procedural and factual history of this appeal is compli-
cated, but its accuracy is paramount to our analysis. To make
things clear, we outline the events that brought the case to us as
follows. Section I.A. describes the proceedings in the TCPA case
Herrick brought against GoDaddy in the District of Arizona. Sec-
tion I.B. covers what transpired in the Southern District of Ala-
bama following Herrick’s appeal to the Ninth Circuit. Section I.C.
covers Class Counsel’s motion for the preliminary approval of the
proposed Settlement Agreement and the certification of a class for
the purpose of settlement, the District Court’s order granting the
motion, and the sending of the notice of settlement to the class
members. Section I.D. concerns Class Counsel’s motion for attor-
ney’s fees, the District Court’s order granting the motion, Pinto’s
objection to the order, and the District Court’s order issued in re-
sponse. Section I.E. describes what happened in the consolidated
cases as Facebook was proceeding in the Supreme Court. It details
the hearing where the District Court considered Class Counsel’s
motions for final approval of the proposed Settlement Agreement
and for attorney’s fees, as well as Pinto’s objections, and then en-
tered final judgment.
A. Herrick’s TCPA Case in the District of Arizona
On January 28, 2016, John Herrick sued GoDaddy under the
TCPA in the District of Arizona.14 Herrick purported to represent
14 See Complaint, Herrick, ECF No. 1.
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a Rule 23(b)(3) class consisting of “[a]ll persons in the United States
who received one or more unsolicited text messages sent by or on
behalf of GoDaddy after October 15, 2013.” 15
Herrick’s complaint, which was amended on August 9, 2016,
alleged the same TCPA violations subsequently asserted in the
complaints in the consolidated actions here, Drazen and Bennett.16
Herrick’s amended complaint asserted that GoDaddy violated
47 U.S.C. § 227(b)(1)(A)(iii) by employing an ATDS to dial his
phone number and the phone numbers of his proposed class mem-
bers and send them text messages. 17 He also asserted that the
ATDS had the capacity to store or produce telephone numbers to
be called using a random or sequential number generator and to
dial such numbers.18 In his prayer for relief, Herrick sought:
(1) statutory damages of $500 per text message under § 227(b)(3)(B)
15 Id. at 8.
16 Amended Complaint, Herrick, ECF No. 27. For convenience we sometimes
refer to Drazen and Bennett collectively as Drazen/Bennett. As noted above, the
only material difference between the complaints in Herrick and in Drazen/Ben-
nett is that Herrick’s class was restricted to violations involving text messages
whereas the complaints in Drazen/Bennett involved phone calls and text mes-
sages.
17 Id. at 15–19. On May 14, 2018, in its order granting GoDaddy summary
judgment, the Herrick court stated: “GoDaddy contracted with a web-based
software application company called 3Seventy, Inc. (‘3Seventy’) to send a one-
text marketing campaign to nearly 100,000 of its customers using its 3Seventy
Platform.” Herrick v. GoDaddy.com LLC, 312 F.Supp.3d 792, 793 (D. Ariz. 2018),
appeal docketed, No. 18-16048 (9th Cir. June 6, 2018).
18 Amended Complaint, Herrick, ECF No. 27 at 18–19.
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16 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 17
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(quoting47 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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18 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 19
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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20 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 21
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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22 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 23
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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24 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 25
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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26 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 27
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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28 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 29
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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30 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 31
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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32 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 33
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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34 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 35
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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36 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 37
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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38 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 39
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. Seeid. 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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40 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 41
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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42 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 43
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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44 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 45
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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46 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 47
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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48 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 49
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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50 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 51
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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52 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 53
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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54 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 55
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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56 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 57
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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58 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 59
(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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60 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 61
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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62 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 63
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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64 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 65
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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66 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 67
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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68 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 69
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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70 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 71
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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72 Opinion of the Court 21-10199
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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21-10199 Opinion of the Court 73
( Jordan, J., dissenting) (discussing “[t]he legal interchangeability be-
tween ‘and’ and ‘or’” in English courts, recognized by the Supreme
Court in 1865, and affirmed several times by our Court).
The context here makes clear “or” has a conjunctive mean-
ing in Rule 23(c)(2)(B)(iii). To start, the “claims, issues, or defenses”
language in Rule 23(c)(2)(B)(iii) intentionally parallels Rule
23(c)(1)(B). In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d
24, 40 n.17 (1st Cir. 2009). Rule 23(c)(1)(B) requires that “[a]n order
that certifies a class action must define the class and the class claims,
issues, or defenses, and must appoint class counsel.” Fed. R. Civ. P.
23(c)(1)(B). In this section of the Rule, “or” must be disjunctive
because a class can consist of just a claim, just an issue, or just a
defense. See Fed. R. Civ. P. 23(a)(3) (“the claims or defenses of the
class”); Wachtel ex rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d
179, 187–88 (3d Cir. 2006) (certification order must include “com-
plete list of the claims, issues or defenses to be treated on a class
basis”); Simpson v. Dart, 23 F.4th 706, 713 (7th Cir. 2022) (class’s def-
inition is not synonymous with its claims). Yet, it makes sense that
the 2003 amendment to Rule 23 copied this language to (c)(2)(B)’s
notice content requirements—so that class members know, “in
plain, easily understood language,” their legal rights that are being
handled by the class device.
Next, there is compelling evidence that “or” is conjunctive
in (c)(2)(B) unlike its sense in (c)(1)(B). A different context gives rise
to a different meaning. First, section (c)(1)(B) deals with the certi-
fication order’s content and thus primarily aids an appellate court
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74 Opinion of the Court 21-10199
in later reviewing whether the class certification order was proper.
See Wachtel, 453 F.3d at 186; see also Newberg § 7:26. On the other
hand, section (c)(2)(B) directs the notice’s content and thus primar-
ily aids class members in deciding whether they would like to opt
out of the (b)(3) class. See In re Nissan, 552 F.2d at 1104–05; New-
berg § 8:12. As such, (c)(2)(B) is meant to provide absent class
members with more, not less, information, so that they can make
an informed decision about opting-out or not. This is buttressed
with the Rule’s command to direct “the best notice that is practica-
ble.” Accordingly, it would make no sense to read (c)(2)(B)(iii)’s
“or” in a disjunctive sense and thus say that notice is sufficient
where it omits the claims and issues but includes information on
possible defenses. Or, more apt in this case, where notice may in-
form class members about their claims but provide no information
on the relevant issues.
A final note on this interpretation: if a class does not have
any defenses, notice containing only the claims and issues would
still be sufficient. This is because all of the “class . . . defenses”
amounts to nothing, and thus class members do not need to be told
of any more relevant information to satisfy Rule 23(c)(2)(B)(iii).
So again, to fulfill the due process principles upon which
Rule 23(c)(2) is based, Rule 23(c)(2)(B)(iii) mandates that the notice
a district court directs to a Rule 23(b)(3) class “clearly and concisely
state in plain, easily understood language . . . the class claims, is-
sues, or defenses.” In Section I.C.iii., we recited what the notice
revealed about the Class Members’ claims. It was sparse. It stated
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21-10199 Opinion of the Court 75
that the claims were founded on 47 U.S.C. § 227 violations. But the
notice failed to reveal that the claims could allow Class Members
to potentially recover $500 for each phone call or text message
made to each Class Member’s cell phone, or $1,500 if made will-
fully or knowingly; that the class consisted of over 1.26 million
members; and that GoDaddy’s liability exposure was more than
$600 million.
If the Class Members had known that GoDaddy was getting
rid of a $600 million exposure for up to $35 million less $10.5 mil-
lion in attorney’s fees (as if paid to the lawyers for eliminating the
exposure), they would have wondered why. And they would likely
have discovered why if the notice had informed them—that is, if
the District Court as fiduciary had ordered the notice to inform
them—of Facebook and the probability that their claims would be
worthless if Facebook were decided before the District Court could
approve the proposed Settlement Agreement.
The District Court neglected its duty in failing to inform the
absent Class Members about the Facebook issue: whether GoDaddy
used an ATDS in making the calls and sending the text messages.
This was the dispositive issue in the case. Both sides agreed that
this was so. Can there be any doubt that the District Court’s failure
to inform the Class Members denied them due process of law?
The Class Members were entitled to know that if the District
Court waited until the Supreme Court decided Facebook before
considering whether to approve the Settlement Agreement, the
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76 Opinion of the Court 21-10199
deal would probably have collapsed. 65 That is because if the Su-
preme Court ruled that a system materially similar to the one Go-
Daddy used was not an ATDS, the Class Members’ claims would
have vanished along with Class Counsel’s anticipated attorney’s
fees. On the other hand, if the Supreme Court ruled to the con-
trary, their claims would have a value well in excess of $35 in cash
or a $150 voucher, and so too Class Counsel’s right to attorney’s
fees.
For these reasons, we conclude that the District Court erred
in approving Class Counsel’s Short Form and Long Form Notices.66
65 When a trial court is told that the dispositive issue in the case is pending
decision in the appellate court (with jurisdiction to review the trial court’s
judgment), it is a rare occasion when the trial court does not stay proceedings
pending the appellate decision.
66 Rule 23(e)(4) arguably provided an opportunity for the District Court, in its
discretion, to send another round of notice after seeing such a low number of
claims or other issues. The Rule is called “New Opportunity to Be Excluded”
and states: “If the class action was previously certified under Rule 23(b)(3), the
court may refuse to approve a settlement unless it affords a new opportunity
to request exclusion to individual class members who had an earlier oppor-
tunity to request exclusion but did not do so.” Fed. R. Civ. P. 23(e)(4). An
unpublished opinion from our Circuit suggests 23(e)(4) does not apply in a
situation like the present one. See, e.g., In re HealthSouth Corp. Sec. Litig., 334
F.App’x 248, 254 n.12 (11th Cir. 2009) (noting that Rule 23(e)(4) “address[es] a
situation in which the class was certified prior to the approval of a settle-
ment”). District courts in Texas and California have come to similar conclu-
sions based on the Advisory Committee notes to the 2003 amendment. See
Slipchenko v. Brunel Energy, Inc., No. H-11-1465, 2015 WL 338358, at *6 (S.D.
Tex. Jan. 23, 2015) (quoting Fed. R. Civ. P. 23(e)(3) advisory committee’s note
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21-10199 Opinion of the Court 77
to 2003 amendment (emphasis added)) (“Rule 23(e)(3) [now (e)(4)] authorizes
the court to refuse to approve a settlement unless the settlement affords a new
opportunity to elect exclusion in a case that settles after a certification decision if
the earlier opportunity to elect exclusion provided with the certification notice has ex-
pired by the time of the settlement notice. A decision to remain in the class is likely
to be more carefully considered and is better informed when settlement terms
are known.”).
We are unpersuaded and think Rule 23(e)(4) allows for additional no-
tice in this situation. First, unpublished opinions are not binding precedent on
us. United States v. Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013) (citing 11th
Cir. R. 36-1, IOP 6). Second, the advisory committee note does not foreclose
this scenario, it just states that (e)(4) also provides an opportunity for additional
notice in that other scenario. Third, and related, if one did think the advisory
committee note cuts against using (e)(4) for notice in any scenario other than
the one it describes, it still would not be binding. Although the interpretations
in the advisory committee notes are highly persuasive, they are not binding.
See Horenkamp v. Van Winkle & Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005).
Finally, the plain text of (e)(4) clearly allows another round of notice for class
members to opt out, even in our scenario. Further, Rule 23(e)(1) provides for
notice when there is a proposed settlement, so it would be superfluous to read
(e)(4) as providing the same notice for the same reasons as the notice proce-
dures of (e)(1). This reading of (e)(4) is supported by a variety of sources, in-
cluding other parts of the advisory committee note, the FJC manual, a leading
legal treatise, and an opinion by then-Judge Ketanji Brown Jackson. See Ross
v. Lockheed Martin Corp., 267 F.Supp.3d 174, 202–04 (D.D.C. 2017); True v. Am.
Honda Motor Co., 749 F.Supp.2d 1052, 1082–83 (C.D. Cal. 2010) (“The only no-
tice sent to class members contained the terms of the initial proposed settle-
ment, to which the parties have agreed to make several substantive changes.
These changes . . . may have an effect on the decisions of the Objectors and
opting-out class members. Thus, the parties should have sent notice of the
revised settlement to at least these class members.”); FJC Manual on Complex
Civil Litigation, § 21.643 (“An opportunity to opt out after the settlement
terms are known, either at the initial opportunity or a second opportunity”);
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78 Opinion of the Court 21-10199
C. Attorney’s Fees Were Not Calculated Properly
Finally, we move to why the District Court abused its discre-
tion when it granted in part Class Counsel’s motion for attorney’s
fees. This Section proceeds in three parts. First, we establish what
Rule 23(h) requires when a district court considers an award of at-
torney’s fees. Second, we note how the District Court erred by
treating the Settlement as creating a common fund rather than a
claims-made settlement. Last, we explain why we disagree with
the District Court’s conclusion that CAFA does not apply. And in
doing so, we answer the novel questions before our Circuit of what
constitutes a coupon settlement and how CAFA’s attorney’s fees
provisions apply.
i. Rule 23(h)
Rule 23(h) governs the award of attorney’s fees. We read
Rule 23(h) “in accordance with its plain text.” NPAS Sols., 975 F.3d
at 1252. “[T]he plain text of the rule requires that any class mem-
ber be allowed an opportunity to object to the fee ‘motion’ itself,
not merely to the preliminary notice that such a motion will be
filed.” Id. (quoting In re Mercury, 618 F.3d at 993–94). This “ensures
that class members have full information when considering—and,
Fed. R. Civ. P. 23(e)(3) advisory committee’s note to 2003 amendment (“A
decision to remain in the class is likely to be more carefully considered and is
better informed when settlement terms are known. . . . Many factors may in-
fluence the court’s decision. Among these are changes in the information
available to class members since expiration of the first opportunity to request
exclusion, and the nature of the individual class members’ claims.”); 5 Moore’s
Federal Practice - Civil § 23.167.
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21-10199 Opinion of the Court 79
should they choose to do so, objecting to—a fee request.” Id. Alt-
hough class members may become aware of the overall amount
that counsel intends to request from a class notice, they would be
at a disadvantage in raising objections based solely on the notice.
Id. This is because only the fee motion filed later will encompass
“‘the details of class counsel’s hours and expenses’ and ‘the ra-
tionale . . . offered for the fee request.’” Id. (quoting Redman v. Ra-
dioShack Corp., 768 F.3d 622, 638 (7th Cir. 2014)) (omission in origi-
nal).
“Allowing class members an opportunity thoroughly to ex-
amine counsel’s fee motion, inquire into the bases for various
charges and ensure that they are adequately documented and sup-
ported is essential for the protection of the rights of class mem-
bers.” Id.(quoting In re Mercury,618 F.3d at 994
). It enhances the
integrity of the class action settlement process, the district courts’
attorney’s fees rulings, and, in the long run, the public’s respect for
the courts. The District Court gave absent Class Members no ad-
vance notice that its June 9, 2020, order would require Class Coun-
sel to file their motion for attorney’s fees by July 24, 2020, despite
the Settlement Agreement requiring that their motion for attor-
ney’s fees be filed by November 14, 2020. 67 The same order then
67 The Settlement Agreement states: “Class Counsel shall file their Motion for
Final Approval of the Agreement, and application for attorneys’ fees, costs and
expenses and for a service award for Plaintiffs, no later than thirty (30) days
prior to the Final Approval Hearing.”
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80 Opinion of the Court 21-10199
gave the absent Class Members only seven days to object to the
motion for attorney’s fees.
The District Court erred. In addition to disregarding the
manifest intent of Rule 23(h), it breached its fiduciary duty to the
absent Class Members whose interests became antagonistic to
Class Counsel’s interests the moment Class Counsel moved the
District Court for attorney’s fees on July 24.
What was the rush? As noted above, “[t]he plain text of
[Rule 23(h)] requires that any class member be allowed an oppor-
tunity to object to the fee ‘motion’ itself, not merely to the prelim-
inary notice that such a motion will be filed.” Id. (quoting In re
Mercury, 618 F.3d at 993–94) (alteration in original). The District
Court admitted that it erred in approving Class Counsel’s motion
in part on August 11, 2020, but it considered the error harmless.
We need not decide whether the District Court’s reconsideration
of the motion at the December hearing removed the taint from its
August 11 action because its ex parte decision on the motion denied
the absent Class Members fundamental due process.
ii. Claims-made v. Common Fund Settlements
“A common-fund case is when ‘a lawyer who recovers a com-
mon fund for the benefit of persons other than himself or his client
is entitled to a reasonable attorney’s fee from the fund as a whole.’”
Home Depot, 931 F.3d at 1079(quoting Boeing Co. v. Van Gemert,444 U.S. 472, 478
(1980)). “This is typical in class actions, where the
class might receive a large payout, from which the attorney derives
his fees.” Id. “In common-fund cases, we have directed courts to
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21-10199 Opinion of the Court 81
use the percentage method.” Id.at 1081 (citing Camden I,946 F.2d at 774
(“Henceforth in this circuit, attorney’s fees awarded from a
common fund shall be based upon a reasonable percentage of the
fund established for the benefit of the class.”)). On the other hand,
“[a] ‘claims-made’ settlement is a settlement that does not have a
fixed settlement fund, but rather provides that the defendant will
pay claims of class members who file them, usually up to some
fixed ceiling.” Newberg § 13:7 (footnote omitted).
These two types of settlements are quite different and the
differences affect the amount class members actually receive. Since
attorney’s fees comes out of the relief awarded to the class, the dif-
ferences between the two settlement types also affect what would
be a reasonable amount of attorney’s fees. See Home Depot, 931 F.3d
at 1079 (“Common-fund cases are consistent with the American
Rule, because the attorney’s fees come from the fund, which be-
longs to the class.”); see also Newberg § 13:54.
In a common fund case, a defendant contributes the
settlement amount, say $100 million, into a settle-
ment fund; the fund is distributed to the class directly
or after a claims process. If the class does not claim
the full $100 million, the unclaimed funds do not nec-
essarily go back (or “revert”) to the defendant; they
may be distributed pro rata among the class members
who made claims, or sent to a charity via a cy
pres award, or to the government via escheat.
....
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82 Opinion of the Court 21-10199
A critical feature of a claims-made settlement is
that although it only pays the claims of class members
who file them, it releases the claims of the entire
class. It is not, therefore, the functional equivalent of
an “opt-in” settlement. By releasing the claims of
nonclaiming class members, a claims-made settle-
ment, like most class action settlements, requires a
class member to opt out to escape its binding effect.
....
. . . The term “claims-made settlements” refers
not to the process of claiming, but to the scope of de-
fendant’s liability—whether it is fixed by a common
fund that does not revert or set only at the level of
class members’ claims.
Newberg § 13:7 (footnotes omitted).
The District Court improperly characterized this settlement
as a common fund settlement when it was actually a claims-made
settlement. This erroneous finding of fact rendered the District
Court’s approval of the proposed Settlement Agreement an abuse
of discretion. See Home Depot Inc., 931 F.3d at 1078-82.
The settlement the Agreement created is a claims-made set-
tlement, not a common fund settlement because, based on the
terms of the Agreement, the $35 million was not a fund created for
the payment of vouchers, cash awards, attorney’s fees, and admin-
istration costs. Instead, GoDaddy only paid out an amount equal
to the claims actually made and settlement costs, after those
amounts were known. As the Agreement stated, “all unpaid funds
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21-10199 Opinion of the Court 83
from uncleared checks and all returned vouchers shall be returned
to [GoDaddy,] and [GoDaddy] shall have no obligation to pay any
further amount.”
Claims-made settlements have some drawbacks:
Claims-made settlements are disfavored be-
cause, as noted in the example above, they tend to
promise far more than they deliver. In most class ac-
tion settlements (claims made or not), claiming may
be quite low because of the small claims nature of the
relief and the often difficult hurdles of claiming; if the
defendant is disgorged of only the amounts claimed,
and not of a fixed fund, it is likely to pay only a small
percentage of the potential total recovery to the
class. This troubles courts, even more so if the settle-
ment also includes a “clear sailing” agree-
ment whereby the defendant agrees not to contest
class counsel’s fee request up to a certain level. The
combination makes it appear as if class counsel
agreed to a low defendant liability in exchange for an
easy fee.
Newberg § 13:7 (footnotes omitted).
Recall that here, less than two percent of the class members
submitted a claim and the attorney’s fees the District Court
awarded were over four times the total value of the claims. In ad-
dition, the parties agreed to a “clear sailing” provision that would
have set the attorney’s fees at $10.5 million, instead of the $7 mil-
lion the District Court eventually approved, which would have
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84 Opinion of the Court 21-10199
created an even larger disparity between the attorney’s fees and the
benefits the Class Members actually received.
Class Counsel—in their briefs, at the final approval hearing,
and at oral argument before us—cited several cases in support of
the position that it was reasonable to award attorney’s fees based
on a percentage of the funds made available to the class, rather than
what the class members actually receive. The first case cited was
Montoya v. PNC Bank, N.A., No. 14-20474-CIV-GOODMAN, 2016
WL 1529902, at *23 (S.D. Fla. Apr. 13, 2016), and, the case it relies
on, Poertner v. Gillette Co., 618 F.App’x 624 (11th Cir. 2015). Neither
case is binding on us here. See United States v. Izurieta, 710 F.3d 1176,
1179 (11th Cir. 2013) (citing 11th Cir. R. 36-1, IOP 6)
(“[U]npublished opinions . . . are not binding precedent.” (internal
quotation marks omitted)). Moreover, the issue in Poertner was not
that the valuation of the settlement was only based on “actual pay-
ments to the class.” Instead, it was that the valuation was flawed
because it did not also include “the substantial nonmonetary bene-
fit and the cy pres award.” Poertner, 618 F.App’x at 630. The case
was not focused on whether the valuation should be based on “ac-
tual payments to the class” or payments that could have been made
if more claims were submitted. The “substantial nonmonetary
benefit” was Gillette agreeing to stop putting the allegedly mislead-
ing statements on the packaging of Ultra batteries. Id. at 626. The
cy pres award was a donation of $6 million of batteries to charities
over the next five years. Id. We have nothing like that in the Drazen
settlement.
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21-10199 Opinion of the Court 85
Class Counsel also rely on our decision in Waters v. Int’l Pre-
cious Metals Corp., 190 F.3d 1291, 1294–95 (11th Cir. 1999). 68 We find
the decision inapposite for several reasons. First, Waters is a com-
mon fund case, so its holdings would not be binding in a claims-
made case. See Home Depot, 931 F.3d at 1082 (“[W]e are not bound
in a contractual fee-shifting case by statutory fee-shifting cases,” re-
garding how to calculate attorney’s fees.). Second, even if Waters
applied, all of the cases it cites—including Boeing, which Class
Counsel cited at oral argument—are common fund cases, save one.
The one exception is Strong v. BellSouth Telecomms., Inc., 137 F.3d
844, 852–53 (5th Cir. 1998). There, the Fifth Circuit held that “it
was not an abuse of discretion for a district court judge to consider
the actual award paid out to the class in determining whether a fee
application was reasonable.” Waters, 190 F.3d at 1296. In sum,
these cases do not apply in the situation here. Moreover, the only
claims-made case cited or relied upon used the actual relief paid
out to class members in calculating the attorney’s fee.
In a statement respecting the denial of certiorari to review
Waters, Justice O’Connor spoke broadly to the attorney’s fees issues
we face here. She stated:
In [Boeing], we upheld an award of attorney’s fees in a
class action where the award was based on the total
fund available to the class rather than the amount ac-
tually recovered. We had no occasion in Boeing, how-
ever, to address whether there must at least be some
68 The District Court similarly misapplied Poertner and Waters. Drazen, 2020
WL 8254868, at *12.
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86 Opinion of the Court 21-10199
rational connection between the fee award and the
amount of the actual distribution to the class. The
approval of attorney’s fees absent any such inquiry
could have several troubling consequences. Arrange-
ments such as that at issue here decouple class coun-
sel’s financial incentives from those of the class, in-
creasing the risk that the actual distribution will be
misallocated between attorney’s fees and the plain-
tiffs’ recovery. They potentially undermine the un-
derlying purposes of class actions by providing de-
fendants with a powerful means to enticing class
counsel to settle lawsuits in a manner detrimental to
the class. And they could encourage the filing of
needless lawsuits where, because the value of each
class member’s individual claim is small compared to
the transaction costs in obtaining recovery, the actual
distribution to the class will inevitably be minimal.
The Courts of Appeals have differed in their ap-
proaches to the problem.
Int’l Precious Metals Corp. v. Waters, 530 U.S. 1223 (2000) (mem) (ci-
tation omitted).
In basing its award of Class Counsel’s attorney’s fees in part
on a finding that the settlement created a common fund, the Dis-
trict Court abused its discretion because the finding constitutes
clear error. That said, we hold that CAFA applies to this settlement,
so its attorney’s fees provisions govern how to calculate attorney’s
fees in this case.
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21-10199 Opinion of the Court 87
iii. The Class Action Fairness Act Applies Because the Settlement
was a Coupon Settlement
If a proposed class action settlement provides for class mem-
ber recovery of coupons, 28 U.S.C. § 1712 comes into play and gov-
erns the district court’s award of attorney’s fees to class counsel.69
The District Court concluded that the proposed Settlement Agree-
ment did not create a coupon settlement subject to CAFA review
because the Class Members had the option to choose a cash award
instead of a voucher. In his opening brief, Pinto argues that the
presence of a cash option should not automatically make a settle-
ment a non-coupon settlement. He identifies three Courts of Ap-
peal that have faced similar cases and how they each applied CAFA,
despite class members having the option to choose between a
voucher and cash.70 Pinto argues that the District Court erred here
because it relied on a district court opinion that cited a Ninth
69 The relevant provisions of 28 U.S.C. § 1712 are quoted in note 85, plus:
(e) Judicial scrutiny of coupon settlements.—In a proposed
settlement under which class members would be awarded
coupons, the court may approve the proposed settlement only
after a hearing to determine whether, and making a written
finding that, the settlement is fair, reasonable, and adequate
for class members.
The ”fair, reasonable, and adequate” language here is the same as
in Rule 23(e)(2), but we leave for another day if this requires some-
thing more.
70 In Section III.C.iii.1, we discuss coupon settlement cases from other Circuits,
including the approaches of the Fourth, Seventh, and Ninth Circuits that Pinto
mentions in his brief here.
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88 Opinion of the Court 21-10199
Circuit opinion,71 which suggested that a cash option would make
CAFA inapplicable. But the Ninth Circuit had since applied CAFA
to settlements with a cash option, twice.72
Pinto contends that the vouchers here are coupons under
CAFA because they “require class members to use them with the
defendant,” may require spending additional money with Go-
Daddy, and have limited flexibility. Pinto also points to the limited
universe of products GoDaddy offers and the policy concern that
GoDaddy is not forced to “disgorge ill-gotten gains” when Class
Members have to do business with GoDaddy to use the vouchers.
Drazen replies that Pinto’s argument about the cash option
is flawed because “the settlement specifically enabled each of the
1.2 million class members to claim a cash award of up to $35.” Dra-
zen contends that because Class Counsel negotiated for and pro-
vided an alternative voucher award—with a face value greater than
four times the cash option—CAFA should not be triggered. Ac-
cording to Drazen, a finding that it does trigger CAFA would disin-
centivize one method for increasing the settlement award for class
members.
71 See Mahoney v. TT of Pine Ridge, Inc., No. 17-80029-CIV, 2017 WL 9472860, at
*6 (S.D. Fla. Nov. 20, 2017); In re Online DVD-Rental Antitrust Litig.,
779 F.3d 934, 952 (9th Cir. 2015). These cases are discussed more fully in Sec-
tion III.C.iii.1.
72 One of these cases, Chambers v. Whirlpool Corp., 980 F.3d 645 (9th Cir. 2020),
provided no guidance on what a coupon is. But the other, In re Easysaver Re-
wards Litigation, 906 F.3d 747 (9th Cir. 2018), is discussed in Section III.C.iii.1.
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21-10199 Opinion of the Court 89
Even if CAFA applies, Drazen argues that the vouchers here
are not coupons because they can be used to buy new services out-
right, not merely for a discount, and without spending any of one’s
own money. Further, the recipients are current customers, and
thus already likely to continue doing business with GoDaddy. For
example, in 2021, website hosting from GoDaddy started at $6 a
month, so someone electing to receive the $150 voucher could get
over two years of website hosting with it, without spending any of
their own money. GoDaddy also has other goods and services that
cost $4, $2 a month, and $10 a month. Drazen says many of the
policy concerns behind CAFA do not apply here because the Class
Members are almost entirely current or former customers and the
alleged violations “do not relate to the quality of services provided
by GoDaddy.” Finally, Drazen points to the nearly 50-50 split be-
tween the Class Members choosing the $150 vouchers and those
choosing $35 cash as an indicator that Cass Members valued the
vouchers the same or better than cash. GoDaddy joins all of Dra-
zen’s arguments on why the vouchers are not coupons while add-
ing that the vouchers are “freely transferrable, good on all products
and services GoDaddy offers, and do[] not require any minimum
purchase.”
We agree that CAFA applies to settlements made up of cou-
pons and other forms of relief because the language of 28 U.S.C.
§ 1712 anticipates that what it labels “coupon settlements” will not
always be composed entirely of coupons. See In re Sw. Airlines
Voucher Litig., 799 F.3d 701, 706–10 (7th Cir. 2015) (explaining the
proper understanding of § 1712(a), (b), and (c) based on the “text
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90 Opinion of the Court 21-10199
and structure of § 1712, along with its legislative history and pur-
pose” and thus “coupon settlements” as the term is used in CAFA
applies “when a coupon settlement also provides some equitable or
cash relief ”). We also agree that the vouchers here are coupons but
based on the plain meaning of the word coupon.
1. The Meaning of Coupon in CAFA
The word “coupon” is not defined in CAFA. See 28 U.S.C.
§ 1712. Therefore, in interpreting the statute, we give “each word
its ordinary, contemporary, [and] common meaning.” Patel v. U.S.
Att’y Gen., 971 F.3d 1258, 1273 (11th Cir. 2020) (en banc) (quotation
omitted); see also United States v. Dawson, 64 F.4th 1227, 1236 (11th
Cir. 2023) (“When a statute does not define a term, the plain mean-
ing of the text controls unless the language is ambiguous or leads
to absurd results.” (cleaned up)). “As an initial matter, we look to
the plain and ordinary meaning of the statutory language as it was
understood at the time the law was enacted.” Dawson, 64 F.4th at
1236 (cleaned up). “And one of the ways to figure out that meaning
is by looking at dictionaries in existence around the time of enact-
ment.” Id. (cleaned up).
The plain meaning of coupon around 2005, when CAFA was
enacted, was a voucher, certificate, or form that can be exchanged
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21-10199 Opinion of the Court 91
for one or more goods or services, or for a discount on one or more
goods or services.73
73 To start, Black’s Law Dictionary is not helpful here. It defines a “coupon”
as “[a]n interest or dividend certificate that is attached to another instrument,
such as a bond, and that may be detached and separately presented for pay-
ment of a definite sum at a specified time.” Coupon, Black’s Law Dictionary 378
(8th ed. 2004). The Oxford English Dictionary’s first definition is similar to
Black’s, but its second definition is more illuminating: “A voucher issued with
a product for the purchaser to exchange for cash or goods; part of a printed
wrapper etc used similarly.” Its two other definitions refer to a “part of an
advertisement” that can be “fill[ed] in and sen[t in] for more information or as
an order for goods,” and “an entry-form for a competition.” Coupon, Oxford
English Dictionary 537 (5th ed. 2002). Merriam-Webster’s Collegiate Diction-
ary also has a first definition similar to Black’s. See Coupon, Merriam-Webster’s
Collegiate Dictionary 286 (11th ed. 2003). Its second definition for “coupon” is:
a form surrendered in order to obtain an article, service, or ac-
commodation: as a: one of a series of attached tickets or cer-
tificates often to be detached and presented as needed b: a
ticket or form authorizing purchases of rationed commodities
c: a certificate or similar evidence of a purchase redeemable in
premiums d: a part of a printed advertisement to be cut off to
use as an order blank or inquiry form or to obtain a discount
on merchandise or services.
Id. The American Heritage Dictionary starts with the similar first definition
and then defines “coupon” as follows:
2.a. One of a set of detachable certificates that may be torn off
and redeemed as needed. b. A detachable part, as of an adver-
tisement, that entitles the bearer to certain benefits, such as a
refund. c. A certificate accompanying a product that may be
redeemed for a cash discount. d. A printed form to be used as
an order blank or for requesting information or obtaining a
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92 Opinion of the Court 21-10199
The $150 Voucher Awards in this case are coupons. They
are credits redeemable for GoDaddy’s products and services. Plain
and simple.
It does not matter that $150 was enough to buy many differ-
ent entire products from GoDaddy or over two years of some of
their services. Although no minimum purchase is required,
whether one must spend additional money with GoDaddy or any-
one else does not by itself transform a voucher into a coupon or
not. The certificate is a coupon whenever it is something that is
not cash but can be exchanged for some or all of a product. For
example, a $20 voucher to a vendor, awarded in a settlement, can
be a coupon whether that vendor only sells items for $10, $20, $30,
or some combination thereof—especially if the settlement vouch-
ers can be stacked and transferred. The definition of a coupon only
turns on whether the voucher, certificate, or form can be ex-
changed for one or more goods or services, or for a discount on
one or more goods or services. The expiration date and restrictions
on vouchers will at some extreme make it so that the vouchers
discount. 3. A detachable slip calling for periodic payments, as
for merchandise bought on an installment plan.
Coupon, American Heritage College Dictionary 327 (4th ed. 2002). Finally, the
New Oxford American Dictionary, first published in 2001, states a “coupon”
is “a voucher entitling the holder to a discount off a particular product” or “a
form in a newspaper magazine that may be filled in and sent as an application
for a purchase or information.” Coupon, New Oxford American Dictionary 392
(1st ed. 2001). In the 2005 edition, “discount off a” was changed to “discount
for a.” Coupon, New Oxford American Dictionary 389 (2d ed. 2005).
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21-10199 Opinion of the Court 93
effectively no longer can be exchanged, and thus are not coupons.
But, such restrictions may diminish the value of the voucher and
thus negatively impact the fair, reasonable, and adequate assess-
ment by the District Court under Rule 23(e)(2). 74
Many of our sister circuits have looked to CAFA’s legislative
history, particularly Senate Report 190-14, to understand what a
“coupon” or “coupon settlement” looks like. However, the Elev-
enth Circuit will not resort to legislative history “to undermine the
plain meaning of the statutory language.” Harris v. Garner, 216 F.3d
970 (11th Cir. 2000) (en banc) (citing among other cases Ratzlaf v.
United States, 510 U.S. 135, 147–48 (1994)). “‘Congressional intent’
is a tricky thing.” Id. at 999 (Tjoflat, J., concurring in part and dis-
senting in part). “[S]ince the Legal Realist movement of the early
20th Century, scholars have criticized the whole concept of a legis-
lative ‘intent’ or ‘purpose’ as undiscoverable at best, and at worst,
74 Also, settlements that automatically give class members goods, services, or
a discount may not be “coupon settlements” under CAFA. For example, a
settlement may automatically enroll class members in one free year of Ama-
zon Prime or automatically add 1,000 V-Bucks to each member’s Epic Games
account. Note, this is different than automatically adding e-credits or dis-
counts to a class member’s account with a store or vendor. There, the credit
or discount must still be exchanged at the point of sale whereas here the ser-
vice (Prime) or goods (V-Bucks) have already been given to the class member
without any intermediate exchange step. In that case, there is nothing to ex-
change or redeem and class members with active Amazon or Epic accounts or
that would actually use the new product or service they have received will
find this settlement award valuable. Here again, this settlement award may
not be a coupon but will affect the fair, reasonable, and adequate assessment
by the District Court.
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94 Opinion of the Court 21-10199
a facade used by activist judges that can be endlessly manipulated
in the service of a judge’s personal policy preferences.” Id. (citing
Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 870–71
(1930)). 75 “Perhaps this is one reason why, in recent years, the fed-
eral courts have turned more and more to focus on the text of a
statute, as opposed to the statutory purpose (often revealed in the
legislative history).” Id. “Though congressional intent (and legis-
lative history) still have a legitimate place in the interpretive enter-
prise, this Court has embraced the notion that we should always
begin with the statutory text, and that where the congressional
command is clear, we should follow the statute as enacted.” Id.
(citation omitted). Indeed, CAFA and its text “resulted from years
of intense lobbying . . . partisan wrangling, and, following two suc-
cessful filibusters, fragile compromises.” In re HP Inkjet Printer
Litig., 716 F.3d 1173, 1181 (9th Cir. 2013) (citation omitted). There-
fore, it would not be appropriate to define “coupon” based on
75 Professor Radin says, in relevant part:
[T]he intention of the legislature is undiscoverable in any real
sense . . . . The chances that several hundred men each will
have exactly the same determinate situations in mind as possi-
ble reductions of a given [statutory issue], are infinitesimally
small . . . . Even if the contents of the minds of the legislature
were uniform, we have no means of knowing that content ex-
cept by the external utterances or behavior of these hundreds
of men, and in almost every case the only external act is the
extremely ambiguous one of acquiescence, which may be mo-
tivated in literally hundreds of ways . . . .
Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 870–71 (1930).
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21-10199 Opinion of the Court 95
CAFA’s legislative history, particularly if doing so would under-
mine its plain meaning.
Our interpretation of “coupon” aligns with those of the
Fourth and Second Circuits, who used contemporary dictionary
definitions along with legislative history. See Moses v. N.Y. Times Co.,
79 F.4th 235, 247–48 (2d Cir. 2023) (confirming legislative history
removes any doubt or ambiguity about the definition of coupon
derived from contemporary dictionaries); In re: Lumber Liquidators
Chinese-Manufactured Flooring Prod. Mktg., Sales Pracs. & Prod. Liab.
Litig., 952 F.3d 471, 488–90 (4th Cir. 2020) (finding its definition to
also be in line with CAFA’s legislative history).
Five of our sister circuits have at least one case deciding
whether a voucher is a coupon. The Seventh Circuit was the first
to consider what a coupon is under 28 U.S.C. § 1712. Judge Wood’s
opinion in Synfuel Technologies v. DHL Express defined a coupon as
“just a discount on a proposed purchase” and not “an entire prod-
uct.” 463 F.3d 646, 654 (7th Cir. 2006). It also listed some charac-
teristics of coupons: forced “future business with the defendant,”
failure to “provide meaningful compensation” or “disgorge ill-got-
ten gains from the defendant,” and “some percentage of the [cou-
pons] will never be used and [thus] not constitute a cost to [defend-
ant].” Id. at 653–54 (citing Christopher R. Leslie, The Need to Study
Coupon Settlements in Class Action Litigation, 18 Geo. J. Legal Ethics
1395, 1396–97 (2005) and then, for the final characteristic, In re Mex-
ico Money Transfer Litig., 267 F.3d 743, 748 (7th Cir. 2001)). Then, in
2014, the Seventh Circuit rejected its previous definition stating,
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96 Opinion of the Court 21-10199
“the idea that a coupon is not a coupon if it can ever be used to buy
an entire product doesn’t make any sense.” Redman v. RadioShack
Corp., 768 F.3d 622, 635 (7th Cir. 2014) (Posner, J.). Instead, it clari-
fied that “[c]oupons usually are discounts” and may also “exceed
the price of an item” that can be purchased with the coupon. Id. at
635–36 (referencing “the dominant concerns that animate the pro-
visions of [CAFA] regarding coupon settlements”) (citing S. Rep.
No. 109-14, pt. IV.D.1, at 15–20); see also In re Sw. Airlines, 799 F.3d
at 706 (citing RadioShack for the proposition that the Seventh Cir-
cuit “ha[s] rejected a narrow definition of ‘coupon’ by rejecting, for
purposes of § 1712, a proposed distinction between ‘vouchers’
(good for an entire product) and ‘coupons’ (good for price dis-
counts)”).
Next, the Ninth Circuit has developed three factors that have
been widely cited by other courts when determining if a voucher
is a coupon. First, the Ninth Circuit found e-credits to be a euphe-
mism for coupons. HP Inkjet, 716 F.3d at 1176. 76 Then, in a 2015
case, Chief Judge Thomas’s opinion found Walmart gift cards not
to be coupons because they provide more flexibility, are not a per-
centage discount on a purchase, do not require spending any more
money, and can potentially be used on a large number of items. See
76 The credits were redeemable for printers and printer supplies on the defend-
ant’s website, but also expired in six months, were not transferrable, could not
be used with other discounts or coupons, and the amount of the largest e-
credit—$6—was also how much more a combo pack of ink cartridges cost on
the defendant’s website as compared to Amazon.com. In re HP Inkjet Printer
Litigation, 716 F.3d 1173, 1176, 1179 & n.6 (9th Cir. 2013).
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21-10199 Opinion of the Court 97
In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 950–51 (9th Cir.
2015) (citing S. Rep. No. 109-14, at 15–20). 77 It distinguished a gift
card to a giant low-cost retailer from every example in the Senate
report for CAFA. See id. Finally, in a 2018 case, the Ninth Circuit
distilled their analysis into three factors from Online DVD:
“(1) whether class members have ‘to hand over more of their own
money before they can take advantage of ’ a credit, (2) whether the
credit is valid only ‘for select products or services,’ and (3) how
much flexibility the credit provides, including whether it expires or
is freely transferrable.” In re Easysaver Rewards Litig., 906 F.3d 747,
755(9th Cir. 2018) (quoting Online DVD,779 F.3d at 951
). This anal-
ysis was “informed by § 1712’s animating purpose of preventing
settlements that award excessive fees while leaving class members
with ‘nothing more than promotional coupons to purchase more
products from the defendants.’” Id. (citing Online DVD, 779 F.3d at
950, and quoting S. Rep. No. 109-14, at 15).
The Sixth Circuit has also weighed in on whether credits in
a particular settlement constituted coupons for the purposes of
CAFA. Chief Judge Cole’s majority opinion held that they did not,
citing the Online DVD factors from the Ninth Circuit, because they
did not “require an individual to buy a product or service before
receiving the promised benefits,” or “reengage[e] in the same . . .
activity that they believe led to their injury.” Does 1-2 v. Déjà Vu
77 The court also pointed out that “[d]istrict courts that have considered the
issue have not classified gift cards as coupon settlements falling under CAFA.”
Online DVD, 779 F.3d at 951 (collecting cases).
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98 Opinion of the Court 21-10199
Servs., Inc., 925 F.3d 886, 897(6th Cir. 2019) (quoting Easysaver,906 F.3d at 757
) (alterations in original). 78 The dissent in Déjà Vu would
have found the credits to be coupons based on § 1712’s animating
purpose, a different view of the same three factors from the Ninth
Circuit, as well as the disgorgement concern from the Seventh Cir-
cuit’s Synfuel opinion. Id. at 902–03 (White, J., dissenting in part)
(citations omitted).
Recently, the Fourth Circuit issued a thoroughly reasoned
opinion on how to determine if a voucher is a coupon for § 1712
of CAFA. The Court based its opinion on three sources: “CAFA’s
legislative history, contemporary dictionaries, and the decisions of
other courts.” Lumber Liquidators, 952 F.3d at 488. An important
first point is that labels for the relief awarded to class members are
not dispositive of whether they are coupons under CAFA. Id. at
489 (citing S. Rep. No. 109-14, at 16, 18–20; RadioShack, 768 F.3d at
635–36). Then, the Court pointed to “at least two interconnected
concerns that Congress targeted” with CAFA: (1) “requir[ing] class
members to do business with [the defendant] in the future,” and
(2) spending additional money with the defendant.79 Id. at 489–90
78 The settlement here provided for injunctive relief and credits by default,
with an option to choose cash instead of credits. Does 1-2 v. Deja Vu Servs., Inc.,
925 F.3d 886, 897 (6th Cir. 2019). The court noted that the cash option meant
class members did not have to still be employed by the defendant or do busi-
ness with it in the future. Id.
79 On the second concern, the court noted that even if class members didn’t
have to spend additional money, that would not be dispositive of the coupon
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21-10199 Opinion of the Court 99
(citations omitted). Next, the Fourth Circuit defined coupons as
“items that entitle their holders to obtain discounted or free . . .
products,” drawing from dictionary definitions collected by a pre-
vious District of Massachusetts case. Id. at 490 (citing Tyler v.
Michaels Stores, Inc., 150 F.Supp.3d 53, 60 & n.14 (D. Mass. 2015)).
Finally, the Court went through the three factors from the Ninth
Circuit and concluded that the vouchers in its case would be cou-
pons under those as well as the broader definition and additional
factors from the Seventh Circuit. Id. at 489–91 (citations omitted);
see also Tyler, 150 F.Supp.3d at 59 (explaining that the Seventh Cir-
cuit’s definition of “coupon” is broader than that of Ninth Cir-
cuit)). 80 The Fourth Circuit also held that § 1712 applies even when
a settlement includes a cash option. Lumber Liquidators, 952 F.3d at
491(first citing Easysaver, 906 F.3d at 759 n.11; and then citing In re
Sw. Airlines, 799 F.3d at 710) (reasoning that to hold otherwise
“would defeat CAFA’s purpose”). 81
issue. In re: Lumber Liquidators Chinese-Manufactured Flooring Prod. Mktg., Sales
Pracs. & Prod. Liab. Litig., 952 F.3d 471, 490 n.12 (4th Cir. 2020).
80 For the approximately 15% of class members that chose a voucher instead
of cash, the voucher covered about 60% of the price they paid for the flooring
from Lumber Liquidators. Id. at 480. The vouchers could only be used on
flooring and flooring tools, had at least a three-year lifespan and could not be
sold or redeemed for cash, but were transferable to family or certain charities
within twenty days. Id. at 490, 478.
81 The Fourth Circuit distinguished the Sixth Circuit’s contrary holding on this
point in Déjà Vu by saying, “that court did not directly resolve the issue because
it concluded that the relief awarded in those proceedings was not ‘coupon’
relief at all.” Id. at 491 n.13.
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100 Opinion of the Court 21-10199
Most recently, the Second Circuit also weighed in on what a
coupon is. It found Access Codes for New York Times subscrip-
tions to be “coupons under the plain meaning of the word ‘cou-
pon,’ the legislative history of CAFA, and even under the Ninth
Circuit’s interpretation of the scope of the coupon settlement pro-
visions.” Moses, 79 F.4th at 248. Judge Lynch’s opinion for the
Court used two contemporary dictionaries to define a coupon as
“an item that entitles its user to free or discounted products or ser-
vices.” Id. at 247. It went on to add that even though “a coupon is
often described as a physical piece of paper, there is no dispute that
coupons may be (and in today’s economy often are) held in digital
form.” Id. at 248. From there, the opinion confirmed its dictionary
definition with CAFA’s legislative history and corroborated its find-
ing that the Access Codes were coupons with the legislative history
and additional considerations from other courts. Id. at 248–53 (col-
lecting cases and factors).
The Eighth Circuit applied the coupon settlement provi-
sions of CAFA in one case where the parties agreed that the certif-
icates provided in that case were a “non-cash benefit to class mem-
bers,” but the court did not provide any additional guidance on
what constitutes a coupon for future cases. See Galloway v. Kansas
City Landsmen, LLC, 833 F.3d 969, 971 (8th Cir. 2016).
A couple of district courts in our Circuit have also ruled on
whether particular settlement awards for class members are cou-
pons. Judge Middlebrooks, in a 2017 Southern District of Florida
case, listed some hallmarks of coupon settlements, but found there
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21-10199 Opinion of the Court 101
is not a coupon settlement when “class members are not required
to take the [non]pecuniary relief ” because there is a cash option.82
Mahoney v. TT of Pine Ridge, Inc., No. 17-80029-CIV, 2017 WL
9472860, at *6 (S.D. Fla. Nov. 20, 2017) (first citing 4 Newburg
§ 12:11 (5th ed. 2011); then citing Online DVD, 779 F.3d at 952; then
citing CLRB Hanson Indus., LLC v. Weiss & Assocs., PC, 465 F.App’x
617, 619 (9th Cir. 2012) (mem.); and then citing O’Brien v. Brain Rsch.
Labs, LLC, No. CIV.A. 12-204, 2012 WL 3242365, at *19 n.8 (D.N.J.
Aug. 9, 2012)). 83 Then, in 2021, a Middle District of Florida opinion
noted that “[d]istrict courts within the Eleventh Circuit have largely
adopted the Ninth Circuit’s rationale” with respect to what is a cou-
pon settlement. Smith v. Costa Del Mar, Inc., No. 3:18-CV-1011-TJC-
JRK, 2021 WL 4295282, at *14 (M.D. Fla. Sept. 21, 2021) (collecting
cases), vacated and remanded on other grounds sub nom. Smith v. Mio-
relli, 93 F.4th 1206, 1209 (11th Cir. 2024. 84
82 The District Court here cited Mahoney in finding that the proposed Settle-
ment Agreement did not create a coupon settlement either, since the Agree-
ment provided an option between cash and nonpecuniary relief. Drazen, 2020
WL 8254868, at *4.
83 Judge Middlebrooks added that the weight given to this factor is reinforced
by the fact that 95.2% of the claims submitted were for the cash award, not
the voucher. Mahoney,2017 WL 9472860, at *6.
84 Chief Judge Corrigan was persuaded by several factors in that case: class
members didn’t need to spend any of their own money to use the vouchers;
the vouchers could be used to purchase a variety of entire items, even if they
didn’t cover the whole price of more expensive items; they were freely stack-
able and transferrable; they had a two-year expiration; and tax, shipping, and
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102 Opinion of the Court 21-10199
Finally, a decision in this area in a 2015 case in the District of
Massachusetts is of note for its use of contemporary dictionary def-
initions. Judge Young’s opinion coined a broad definition of a cou-
pon for the purposes of CAFA, which it also found to be consistent
with various dictionaries. Tyler, 150 F.Supp.3d at 60 & n.14 (collect-
ing a 1989, 2000, and 2003 definition from dictionaries that the First
Circuit has used before).
All told, we define a coupon for the purposes of CAFA as a
voucher, certificate, or form that can be exchanged for one or more
goods or services, or for a discount on one or more goods or ser-
vices, thus aligning our interpretation with those of the Fourth and
Second Circuits.
2. Calculating Attorney’s Fees Under CAFA
Given that CAFA applies because this settlement contains
coupons, the next question is how do we determine attorney’s fees
in coupon settlements. There are three relevant provisions of
CAFA that relate to attorney’s fees in coupon settlements.85 The
handling costs were waived. Smith v. Costa Del Mar, Inc., No. 3:18-CV-1011-
TJC-JRK, 2021 WL 4295282, at *14 (M.D. Fla. Sept. 21, 2021) (citations omit-
ted). Also, the more a consumer was potentially wronged, the more value
they got from the settlement, in the form of more vouchers. Id.
85 The relevant provisions here are:
(a) Contingent Fees in Coupon Settlements.— If a proposed
settlement in a class action provides for a recovery of cou-
pons to a class member, the portion of any attorney’s fee
award to class counsel that is attributable to the award of
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21-10199 Opinion of the Court 103
the coupons shall be based on the value to class members
of the coupons that are redeemed.
(b) Other Attorney’s Fee Awards in Coupon Settlements.—
(1) In general.—If a proposed settlement in a class action
provides for a recovery of coupons to class members,
and a portion of the recovery of the coupons is not
used to determine the attorney’s fee to be paid to class
counsel, any attorney’s fee award shall be based upon
the amount of time class counsel reasonably expended
working on the action.
(2) Court approval.—Any attorney’s fee under this sub-
section shall be subject to approval by the court and
shall include an appropriate attorney’s fee, if any, for
obtaining equitable relief, including an injunction, if
applicable. Nothing in this subsection shall be con-
strued to prohibit application of a lodestar with a mul-
tiplier method of determining attorney’s fees.
(c) Attorney’s Fee Awards Calculated on a Mixed Basis in
Coupon Settlements.—If a proposed settlement in a class
action provides for an award of coupons to class members
and also provides for equitable relief, including injunctive
relief—
(1) that portion of the attorney’s fee to be paid to class
counsel that is based upon a portion of the recovery of
the coupons shall be calculated in accordance with sub-
section (a); and
(2) that portion of the attorney’s fee to be paid to class
counsel that is not based upon a portion of the recov-
ery of the coupons shall be calculated in accordance
with subsection (b).
(d) Settlement valuation expertise. —In a class action involv-
ing the awarding of coupons, the court may, in its
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104 Opinion of the Court 21-10199
meaning of these provisions does not jump off the page because
the statute is “not a model of draftsmanship.” Linneman v. Vita-Mix
Corp., 970 F.3d 621, 625 (6th Cir. 2020) (collecting cases finding the
same). Accordingly, we must engage in statutory interpretation to
resolve this case, and we do so de novo. United States v. Jim, 891 F.3d
1242, 1250 (11th Cir. 2018). Upon review of the text and the poli-
cies underpinning the act, we adopt the same interpretation as all
of our sister Circuits to consider the question, except for the Ninth
Circuit. See Lumber Liquidators, 27 F.4th at 302 (collecting additional
cases from the Sixth, Seventh, and Eighth); see also Blessing v. Sirius
XM Radio Inc., 507 F.App’x 1, 4–5 (2d Cir. 2012) (adopting the same).
But see HP Inkjet, 716 F.3d at 1185 (adopting a different interpreta-
tion).
The attorney’s fees for coupon settlements under CAFA may
be based on the value of the coupons that are redeemed, the lode-
star method, or a combination of both.
By its terms, a district court may choose to “attribute”
attorney’s fees to a settlement’s provision of “cou-
pons” using the percentage-of-recovery method un-
der subsection (a), in which case the fee calculation
must be based on the value of any “coupons” actually
redeemed by class members — not a defined face
discretion upon the motion of a party, receive expert testi-
mony from a witness qualified to provide information on
the actual value to the class members of the coupons that
are redeemed.
28 U.S.C. § 1712(a)–(d).
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21-10199 Opinion of the Court 105
value. See 28 U.S.C. § 1712(a). On the other hand, sub-
section (b) provides that if a court does not use “a por-
tion of the recovery of the coupons” in determining
its attorney’s fees award, the award “shall be based
upon the amount of time class counsel reasonably ex-
pended working on the action” — in other words, the
statute approves the lodestar approach. Id. §
1712(b)(1). For its part, subsection (c) simply extends
the discretion afforded to the district court, providing
that if a “coupon” settlement also provides for equi-
table relief, the court may use a combination of the
percentage-of-recovery and lodestar methods, de-
pending on what portions of the fee award (if any) are
“based upon a portion of the recovery of the cou-
pons.” Id. § 1712(c)(1)-(2).
Lumber Liquidators, 27 F.4th at 301. All of the attorney’s fees in a
settlement including coupons are not simply “attributable to the
award of coupons.” Rather, the portion of the fees that comes
from a calculation based on the value of the coupons is the portion
of the fees “attributable to” or “based upon” the coupons. See Lin-
neman, 970 F.3d at 625–28 (conducting statutory interpretation of
the phrase “attributable to” in this section of CAFA and concluding
the same).
Naturally, the next question is when and how to determine
the value of coupons that are actually redeemed. In many cases, it
will be reasonable for a district court to entertain and approve mo-
tions for attorney’s fees only after the coupons’ expiration date so
that it knows for certain the value of the coupons that were actually
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106 Opinion of the Court 21-10199
redeemed. It is also reasonable, and in fact may be the only practi-
cal thing to do sometimes, to estimate the redemption rate of the
coupons when approving the settlement. For exactly this purpose,
CAFA itself provides that “the court may, in its discretion upon the
motion of a party, receive expert testimony from a witness quali-
fied to provide information on the actual value to the class mem-
bers of the coupons that are redeemed.” 28 U.S.C. § 1712(d). Fi-
nally, even when the fees are based on the lodestar method, a dis-
trict court may abuse its discretion if it does not consider the re-
demption rate of the coupons during the fair, reasonable, and ade-
quate assessment of the settlement as a whole. See Linneman,
970 F.3d at 628 (“[A] district court must ensure that a fees award is
‘reasonable,’ which includes as ‘the most critical factor . . . the de-
gree of success obtained.’ And as discussed below, a district court
will often abuse its discretion if it fails to consider the redemption
rate as part of that analysis.” (quoting Hensley v. Eckerhart,
461 U.S. 424, 436 (1983))).
Accordingly, calculating attorney’s fees in this case as a per-
centage of the possible relief available to class members used the
wrong legal standard and was thus an abuse of discretion.
IV. Conclusion
In deciding this appeal, we have considered matters not spe-
cifically raised in Pinto’s opening brief. His brief questions the Dis-
trict Court’s Rule 23(e)(2) finding that the proposed Second
Amended Class Action Settlement Agreement and Release was
“fair, reasonable, and adequate” and the Court’s granting of Class
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21-10199 Opinion of the Court 107
Counsel’s motion for attorney’s fees. But his brief does not ad-
dress, as we have here, the District Court’s errors, prompted as they
were by the Plaintiffs’ lawyers. Specifically, the District Court erred
in (1) applying Rule 23—especially Rule 23(e)(1) and (c)(2)—in pre-
liminarily approving the proposed Settlement Agreement and (2)
ordering Rule 23(c)(2) notice pursuant to Rule 23(e)(1) to a class
proposed to be certified for purposes of settlement under Rule
23(b)(3).
That Pinto’s brief did not pinpoint these errors is under-
standable given the fact that the errors occurred in the June 9 order
while the District Court was proceeding ex parte with respect to
absent class members. This order certified a Rule 23(b)(3) class for
settlement purposes only, and, pursuant to Rule 23(c)(2), directed
the issuance of the Short Form Notice to class members of the pro-
posed settlement—all without “conduct[ing] a rigorous analysis of
the [R]ule 23 prerequisites.” 86 Castano, 84 F.3d at 740.
86 Had the District Court conducted a rigorous analysis of the Rule 23(e)(1)
prerequisites in May and June of 2020, before “ordering notice under Rule
23(e)(1) to a class proposed to be certified for purposes of settlement under
Rule 23(b)(3),” it would have discovered what it ultimately sensed by Decem-
ber 23, 2020—that GoDaddy had entered into the Settlement Agreement and
agreed to pay the Plaintiffs’ lawyers up to $10.5 million in order to obtain wide-
spread releases of liability for itself and a host of other entities. The released
parties included GoDaddy “and its past and present parents, predecessors, suc-
cessors, affiliates, holding companies, subsidiaries, employees, agents, attor-
neys, board members, assigns, partners, contractors, joint venturers, or third-
party agents with which it has or had contracts, and/or their affiliates.”
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108 Opinion of the Court 21-10199
To conduct that rigorous analysis, discover the errors we
have pinpointed, and call them to the District Court’s attention by
objection made under penalty of perjury, Pinto’s lawyer had less
than fifty-two days, from July 9 to August 31, 2020. In that time,
the lawyer would have needed to analyze the proposed Settlement
Agreement, consult GoDaddy’s settlement website, and then con-
sider why GoDaddy had entered into the proposed Settlement
Agreement and promised to pay the Plaintiffs’ lawyers up to $10.5
million. To understand why, Pinto’s lawyer would have to read the
record in Herrick, which was on appeal in the Ninth Circuit and had
been fully briefed. The briefs and the decision on appeal described
the controversy in Drazen/Bennett in far greater detail than did the
Short Form Notice, Long Form Notice, or anything on the settle-
ment website. 87
No lawyer, we submit, would have discovered the errors we
have pinpointed in less than fifty-two days and presented those er-
rors to the District Court in an objection filed under penalty of per-
jury, as the District Court required in its June 9 order. More to the
point, no lawyer would have filed an objection under penalty of
87 The Short Form Notice informed Pinto of the relevant litigation thusly:
This notice concerns a proposed Settlement to resolve claims
in the lawsuits Drazen v. GoDaddy.com, LLC, Case No. 19-cv-
00563 (S.D. Ala.), Bennett 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.).
App. Ex. A.
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21-10199 Opinion of the Court 109
perjury without reading the record of Herrick’s appeal in the Ninth
Circuit. So, too, the District of Arizona record in Bennett. The ob-
jection Pinto’s lawyer presented was rock solid and limited to the
information provided to the absent class members with the Court’s
imprimatur. The objection was that in granting Class Counsel’s mo-
tion for attorney’s fees on August 11, 2020, the District Court had
breached its fiduciary duty to the absent class members and thereby
denied them due process of law. The Court erred, the objection
read, because the Short Form Notice told class members that they
had until August 31 to object to Class Counsel’s motion for attor-
ney’s fees, not July 31 as the June 9 order stated, or August 11 when
the court ruled on the attorney’s fees motion.
That’s the extent of the objection Pinto’s lawyer could ethi-
cally make by August 31 under penalty of perjury. The question is
whether we should limit our review to the objection. We think not
for two reasons.
The first is what Justice Black stated in Hormel. It is worth
repeating:
[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.
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110 Opinion of the Court 21-10199
Hormel, 312 U.S. at 557.
The second reason is that in declining to entertain points
Pinto did not brief—all concerning the District Court’s application
of Rule 23—we would tend to make light of what the Third Circuit
stated in In re General Motors. “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, 55 F.3d at 785 (quoting
Grunin, 513 F.2d at 123).
The District Court became the absent class members’ fidu-
ciary and guardian on June 9, 2020, when it certified the members
ex parte as a class for settlement purposes only. They remained sub-
ject to that guardianship unless and until they opted out of the set-
tlement by August 31, 2020, by writing the Settlement Administra-
tor a letter in which they stated, under penalty of perjury, the desire
to be excluded from the Settlement Class. Because the District
Court preliminarily approved the Settlement Agreement before
formally certifying a class (on December 23, 2020), it had to be
“even more scrupulous than usual” in guarding the rights of the
absent class members. Id. at 805; accord Mars, 834 F.2d at 681; Wein-
berger, 698 F.2d at 73.
In sum, the District Court abused its discretion in approving
the Second Amended Class Action Settlement Agreement and Re-
lease. For the reasons above, we VACATE the judgment of the
District Court and its order granting attorney’s fees and REMAND
the cases to the District Court for further proceedings consistent
with the holdings of this opinion.
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21-10199 Opinion of the Court 111
SO ORDERED.
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21-10199 WILSON, J., Concurring in the Judgment 1
WILSON, Circuit Judge, Concurring in the Judgment, joined by
BRANCH, Circuit Judge:
I concur in the judgment to the extent that I concur with the
analysis in Section III.C.iii. While Judge Tjoflat’s opinion discusses
several reasons for why the district court erred, I would have ad-
dressed only the district court’s erroneous determination that this
was not a coupon settlement and the related attorney’s fees calcu-
lation issue.
With that said, I agree with the determination that the Class
Action Fairness Act (CAFA) “applies to settlements made up of
coupons and other forms of relief because the language of 28 U.S.C.
§ 1712 anticipates that what it labels ‘coupon settlements’ will not
always be composed entirely of coupons.” Judge Tjoflat Op. at 89–
90 (citing In re Sw. Airlines Voucher Litig., 799 F.3d 701, 706–10 (7th
Cir. 2015)). In finding that the CAFA applies, Judge Tjoflat then
thoroughly explains how district courts should address attorney’s
fees in a coupon settlement, and I agree with this analysis.
Ultimately, the district court erred, and the Court correctly
vacates and remands this case back to the district court.
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APPENDIX
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EXHIBIT A
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PROPOSED SHORT FORM NOTICE
IF YOU RECEIVED A TEXT MESSAGE OR PHONE CALL FROM
GODADDY BETWEEN NOVEMBER 4, 2014 AND DECEMBER 31, 2016
ON YOUR CELLULAR TELEPHONE, YOU MAY BE ELIGIBLE TO
RECEIVE A MERCHANDISE CREDIT OR PAYMENT FROM A CLASS
ACTION SETTLEMENT
A federal court authorized this Notice. You are not being sued. This is not a
solicitation from a lawyer.
PLEASE DO NOT CONTACT THE CLERK OF THE COURT, THE JUDGE,
OR THE DEFENDANT WITH QUESTIONS ABOUT THE SETTLEMENT OR
THE LITIGATION
This notice concerns a proposed Settlement to resolve claims in the lawsuits
Drazen v. GoDaddy.com, LLC, Case No. 19-cv-00563 (S.D. Ala.), Bennett 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.). 1 Plaintiffs Susan Drazen, Jason Bennett, and John Herrick (“Plaintiffs”)
allege that Defendant GoDaddy.com, LLC (“GoDaddy”) violated the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by placing phone calls and
sending text messages to cellular telephone numbers without the recipients’
consent. GoDaddy denies the allegations in the lawsuits, and the Court has not
decided who is right.
Am I a Member of the Settlement Class?
You are receiving this notice because GoDaddy’s records indicate that you might
be a Settlement Class Member. You’re a member of the settlement class if, at any
time between November 4, 2014 and December 31, 2016, GoDaddy placed a voice
or text message call to your cellular telephone pursuant to an outbound campaign
facilitated by the web-based software application used by 3Seventy, Inc., or the
software programs and platforms that comprise the Cisco Unified Communications
Manager.
1
Capitalized terms herein have the same meanings as those defined in the Settlement
Agreement, a copy of which may be found online at the Settlement Website below.
1
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What can I Get From The Proposed Settlement?
GoDaddy has agreed to make up to $35,000,000 available to pay individuals who
submit valid claim forms, settlement administration costs, attorney’s fees, a service
award to the Plaintiffs, and costs and expenses of the litigation. Subject to the
qualification set forth at the end of this paragraph, each Settlement Class Member
who submits a valid Claim Form will be entitled to receive their choice of either a
Voucher Award (a $150 merchandise credit voucher that can be used for any
products and services made available by GoDaddy) or a Cash Award ($35, in the
form of a check mailed to you). The Voucher Award is freely transferrable, is good
on all merchandise (including sale, discount, or promotional pricing), and requires
no minimum purchase. There is a limit of one Claim per Settlement Class Member,
and each Settlement Class Member may receive only one Voucher Award or one
Cash Award. Upon receipt of a valid Claim Form, the Settlement Administrator
will determine whether you are eligible to receive an Award. Depending on how
many valid Claim Forms are submitted, it is possible that each Settlement Class
Member’s Award will be reduced on a pro-rata basis to cover settlement
administration costs, attorney’s fees, a service award to the Plaintiffs, and the costs
and expenses of the litigation.
To receive either the Voucher Award or the Cash Award, you must submit a Claim
Form online at [www.DrazenTCPASetlement.com], or print the Claim Form and
mail it to the Settlement Administrator at the address provided on the Claim Form.
A Claim Form must be postmarked or submitted online by [October 7, 2020].
What are My Options?
If you do not want to be legally bound by the settlement, you must exclude
yourself by [August 31, 2020]. If you do not exclude yourself, you will release any
claims you may have, as more fully described in the Settlement Agreement,
available at the settlement website [www.DrazenTCPASettlement.com]. You may
object to the settlement by [August 31, 2020]. The Long Form Notice available on
the website explains how to exclude yourself or object. 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 of 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
2
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Settlement Website when it is filed with the Court. The Court will decide the
amount of fees and expenses to award. You may appear at the hearing, subject to
the requirements set by the Court, either yourself or through an attorney hired by
you, but you are not required to do so. For more information, call [(866) 977-0753]
or visit the website.
3
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EXHIBIT B
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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Drazen v. GoDaddy.com, LLC, Case No. 19-cv-00563
(U.S. District Court for the Southern District of Alabama)
Bennett v. GoDaddy.com, LLC, Case No. 1:20-cv-00094
(U.S. District Court for the Southern District of Alabama)
Herrick v. GoDaddy.com, LLC, Case No. 2:16-cv-00254, appeal pending 18-16048 (9th Cir.)
(U.S. District Court for the District of Arizona)
PLEASE READ THIS NOTICE CAREFULLY. IF YOU RECEIVED A PHONE CALL OR TEXT MESSAGE
ON YOUR CELLULAR TELEPHONE FROM GODADDY BETWEEN NOVEMBER 4, 2014, AND
DECEMBER 31, 2016, YOU MAY BE ENTITLED TO A MERCHANDISE CREDIT OR PAYMENT FROM
A CLASS ACTION SETTLEMENT. THIS NOTICE EXPLAINS YOUR RIGHTS AND OPTIONS AND THE
DEADLINES TO EXERCISE THEM.
A federal court authorized this Notice. You are not being sued. This is not a solicitation from a lawyer.
PLEASE DO NOT CONTACT THE CLERK OF THE COURT, THE JUDGE, OR THE
DEFENDANT WITH QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION.
This Notice concerns the proposed settlement to resolve claims in the lawsuits Drazen v. GoDaddy.com, LLC, Case
No. 19-cv-00563 (S.D. Ala.), Bennett 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.). 1
Plaintiffs Susan Drazen, Jason Bennett, and John Herrick (“Plaintiffs”) allege that Defendant GoDaddy.com, LLC
(“GoDaddy”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by placing phone calls
and sending text messages to cellular telephone numbers without the recipients’ consent.
GoDaddy denies Plaintiffs’ allegations, denies any wrongdoing whatsoever, and has not conceded the truth or validity
of any of the claims against it. By entering into this settlement, the parties seek to avoid the risks and costs associated
with further litigation. The Court has not decided who is right.
The settlement offers payments (in the form of either a merchandise voucher or cash) to Settlement Class Members
who submit valid Claims.
Your legal rights are affected regardless of whether you act. Read this Notice carefully.
WHY DID I GET THIS NOTICE?
This is a court-authorized notice of a proposed settlement in the class action lawsuits known as Drazen v. GoDaddy.
com, LLC, Case No. 19-cv-00563 (S.D. Ala.), Bennett 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
settlement would resolve lawsuits brought on behalf of persons who allege that GoDaddy.com, LLC (“GoDaddy”)
placed calls and sent text messages to cellular telephone numbers without the recipients’ consent. The Court has
granted preliminary approval of the settlement and has conditionally certified the Settlement Class for purposes of
settlement only. This Notice explains the nature of the class action lawsuit, the terms of the settlement, and the legal
rights and obligations of the members of the Settlement Class. Please read the instructions and explanations below so
that you can better understand your legal rights.
The Honorable Kristi K. DuBose, U.S. District Court for the Southern District of Alabama, is overseeing this
settlement.1
WHAT ARE THE LAWSUITS ABOUT?
The lawsuits allege that GoDaddy placed calls and sent text messages to cellular telephone numbers without the
recipients’ consent, in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. GoDaddy
1
Capitalized terms herein have the same meanings as those defined in the Settlement Agreement (the “Agreement”), which may be found
online at the Settlement Website, www.DrazenTCPASettlement.com.
AA7351 v.06
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denies each and every allegation of wrongdoing, liability, and damages that were or could have been asserted in the
Actions, and GoDaddy denies that the claims in the Actions would be appropriate for class treatment if the litigation
were to proceed through trial.
The Plaintiffs’ Complaints, the Settlement Agreement, and other case-related documents are available on the
Settlement Website, accessible at www.DrazenTCPASettlement.com. The settlement resolves the Actions. The Court
has not decided who is right.
WHY IS THIS A CLASS ACTION?
A class action is a lawsuit in which one or more persons called a “Class Representative” sues on behalf of people who
have similar claims. All of these people together are a “Settlement Class” or “Settlement Class Members.” The
settlement, if finally approved by the Court, resolves the issues for all Settlement Class Members, except for those
who exclude themselves from the Settlement Class.
WHY IS THERE SETTLEMENT?
The Plaintiffs and GoDaddy have determined that it is in their best interests to settle this case to avoid the expenses,
uncertainties, and inconvenience associated with litigation. This settlement resolves all claims against GoDaddy and
its affiliated entities. The settlement is not an admission of wrongdoing by GoDaddy and does not imply that there
has been, or would be, any finding that GoDaddy violated any law. GoDaddy denies each and every allegation of
wrongdoing and liability in the Actions.
The Court has already preliminarily approved the settlement. Nevertheless, because the settlement of a class action
determines the rights of all members of the class, the Court overseeing these lawsuits must give Final Approval to the
settlement before it can be effective. The Court has conditionally certified the Settlement Class for settlement
purposes only, so that Settlement Class Members receive this Notice and have the opportunity to exclude themselves
from the Settlement Class, to voice their support or opposition to Final Approval of the settlement, and to have the
opportunity to obtain the benefits offered by the settlement. If the Court does not give Final Approval to the settlement,
or if it is terminated by the parties, the settlement will be void, and the lawsuits will proceed as if there had been no
settlement and no certification of the Settlement Class.
WHO IS IN THE SETTLEMENT CLASS?
You are a member of the Settlement Class if, between November 4, 2014, and December 31, 2016, GoDaddy placed
a voice call or sent a text message to your cellular telephone pursuant to an outbound campaign facilitated by the
web-based software application used by 3Seventy, Inc., or the software programs and platforms that comprise the
Cisco Unified Communications Manager.
Excluded from the Settlement Class are (1) the trial judge presiding over the Actions; (2) GoDaddy, as well as any
parent, subsidiary, affiliate, or control person of GoDaddy, and the officers, directors, agents, lawyers, servants, or
employees of GoDaddy; (3) the immediate family of any such person(s); (4) any Settlement Class Member who
timely opts out of the settlement; and (5) Class Counsel, their employees, and their immediate family.
WHAT ARE MY OPTIONS?
(1) Submit a Claim Form.
If you are a member of the Settlement Class, you must submit a completed claim form to receive your choice of a
Voucher Award or Cash Award. To do so, you must complete a claim form and submit it by October 7, 2020. You
may obtain a claim form at www.DrazenTCPASettlement.com, and you may submit your claim form online at
www.DrazenTCPASettlement.com or to the Settlement Administrator by U.S. Mail at Drazen v. GoDaddy.com, LLC,
Settlement Administrator, P.O. Box 2730, Portland, OR 97208-2730, postmarked by October 7, 2020. Submitting a
valid and timely claim form is the only way to receive a benefit from this settlement, and is the only thing you need
to do to receive the elected Voucher Award or Cash Award. If the Court approves the settlement and it becomes final
and effective, and you have submitted a valid claim form, then you will receive your elected Award.
(2) Exclude Yourself.
You may exclude yourself from the settlement. If you do so, you will receive no benefit from the settlement, but you
will not release any claims you may have against GoDaddy and the Released Parties (as that term is defined in the
Settlement Agreement), and are free to pursue whatever legal rights you may have by pursuing your own lawsuit
AA7352 v.06
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against the Released Parties at your own risk and expense. To exclude yourself from the settlement, you must mail a
timely letter to the Settlement Administrator at Drazen v. GoDaddy.com, LLC, Settlement Administrator, P.O. Box
2730, Portland, OR 97208-2730, postmarked by August 31, 2020. Your request to be excluded 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 Settlement Class,” and that, absent of excluding yourself or “opting out,” you are “otherwise a
member of the Settlement Class in the proposed settlement of Drazen v. GoDaddy.com, LLC, Case No. 19-cv-00563
(S.D. Ala.), Bennett 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
name, address, telephone number(s), and GoDaddy account number(s).
You cannot ask to be excluded on the phone, by email, or via the Settlement Website. You may opt out of the
Settlement Class only for yourself.
(3) Object to the Settlement.
If you are a Settlement Class Member (and do not exclude yourself from the Settlement Class), you can object to any
part of the settlement. To object, you must submit a timely letter that includes the following: (1) a heading that includes
the case name and case number; (2) your full name, address, telephone number, the cellular telephone number(s) at
which you received a phone call or text message from GoDaddy between November 4, 2014, and December 31, 2016,
GoDaddy account number(s), and if represented by counsel, the name, bar number, address, 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, and December 31, 2016, and that you are a member of the
Settlement Class; (4) a statement of all your objections to the settlement, including your legal and factual 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 action 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 counsel’s law firm has
made such objection, and a copy of any orders related to or ruling upon your, your counsel’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 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
process of objections—whether written or verbal—between you or your counsel and any other person or entity.
IF YOU DO NOT TIMELY MAKE YOUR OBJECTION, YOU WILL BE DEEMED TO HAVE WAIVED
ALL OBJECTIONS AND WILL NOT BE ENTITLED TO SPEAK AT THE FINAL APPROVAL HEARING.
If you file and serve a written objection and statement of intent to appear, you may appear at the Final Approval
Hearing, either in person or through your personal counsel hired at your expense, to object to the fairness,
reasonableness, or adequacy of the settlement.
If you wish to object, you must file your objection with the Court (using the Court’s electronic filing system or in any
manner in which the Court accepts filings) no later than August 31, 2020, and mail a copy of your objection to (1)
the Clerk of Court; (2) the attorneys representing the Plaintiffs and the Settlement Class (Evan M. Meyers, McGuire
Law, P.C., 55 West Wacker Drive, 9th Floor, Chicago, IL 60601); and (3) the attorneys representing GoDaddy (Paula
L. Zecchini and Jeffrey M. Monhait, Cozen O’Connor, 999 Third Avenue, Suite 1900, Seattle, WA 98104),
postmarked no later than August 31, 2020.
If you hire an attorney in connection with making an objection, that attorney must also file with the Court a notice of
appearance by November 30, 2020. If you do hire your own attorney, you will be solely responsible for payment of
any fees and expenses the attorney incurs on your behalf. If you exclude yourself from the settlement, you cannot file
an objection.
(4) Do Nothing.
If you are a Settlement Class Member and do not submit a valid claim form, you will still be bound by all orders and
judgments of the Court. Unless you exclude yourself from the settlement, you will not be able to file or continue a
lawsuit against the Released Parties regarding any released claims.
WHAT DOES THE SETTLEMENT PROVIDE?
GoDaddy has agreed to make up to $35,000,000 available to pay individuals who submit a valid claim form,
settlement administration costs, attorney’s fees, a service award to the Plaintiffs, and costs and expenses of the
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litigation. Subject to the qualification set forth at the end of this paragraph, each Settlement Class Member who
submits a valid claim form will be entitled to receive their choice of either a Voucher Award (a $150 merchandise
credit voucher that can be used for any products and services made available by GoDaddy) or a Cash Award ($35 in
the form of a check mailed to you). The Voucher Award is freely transferrable, is good on all merchandise (including
sale, discount, or promotional pricing), and requires no minimum purchase. There is a limit of one Claim per
Settlement Class Member, and each Settlement Class Member may receive only one Voucher Award or one Cash
Award. Upon receipt of a valid claim form, the Settlement Administrator will determine whether you are eligible to
receive a Settlement Award. Depending on how many valid claim forms are submitted, it is possible that each
Settlement Class Member’s Settlement Award will be reduced on a pro rata basis to cover settlement administration
costs, attorney’s fees, a service award to the Plaintiffs, and the costs and expenses of the litigation.
Plaintiffs and their lawyers think the proposed settlement is best for everyone who is affected by it.
To claim a Voucher Award or a Cash Award, Class Members must submit a claim form by October 7, 2020. Following
the Final Approval of the settlement, the Settlement Administrator will provide the Voucher Award (in the form of a
redemption code) or Cash Award (in the form of a check) to each Class Member who submitted a valid and timely
claim form. All checks issued to Settlement Class Members who choose to receive the Cash Award will expire and
become void one hundred eighty (180) days after they are issued. Any unused Voucher Award balance will be forfeited
one (1) year after it is issued.
Additionally, the attorneys who brought these lawsuits (listed below) will ask the Court to award them attorney’s fees
in an amount not to exceed 30% of $35,000,000, plus costs for their time, expense, and effort expended in
investigating the facts, litigating these cases, and negotiating the settlement. The Plaintiffs will also ask the Court for
a payment of up to $5,000 each for their time, effort, and service in this matter.
WHAT RIGHTS AM I GIVING UP IN THIS SETTLEMENT?
Unless you exclude yourself from the settlement, you cannot sue or be part of any other lawsuit against GoDaddy
about the issues in this case, including any existing litigation, arbitration, or proceeding. Unless you exclude yourself,
all of the decisions and judgments by the Court will bind you.
The Settlement Agreement is available at www.DrazenTCPASettlement.com. The Settlement Agreement provides
more detail regarding the Releases and describes the Released Claims with specific descriptions in necessary, accurate
legal terminology, so read it carefully. If you have any questions, you can talk for free to the attorneys identified
below who have been appointed by the Court to represent the Settlement Class, or you are welcome to talk to any
other lawyer you choose at your own expense.
WHEN WILL I RECEIVE THE VOUCHER AWARD OR CASH AWARD?
The parties cannot accurately predict when (or whether) the Court will grant Final Approval to the settlement, so
please be patient. After the Court finally approves the settlement, and after any appeals are resolved, you will receive
your Voucher Award or Cash Award. If there are appeals, resolving them can take time. Updated information about
the case will be made available at www.DrazenTCPASettlement.com, or you can call the Settlement Administrator at
(866) 977-0753 or contact Class Counsel at the information provided below.
WHEN WILL THE COURT RULE ON THE SETTLEMENT?
The Court has already granted Preliminary Approval of the settlement. A final hearing on the Settlement, called a
final approval or fairness hearing, will be held to determine the fairness of the settlement. At the Final Approval
Hearing, the Court will also consider whether to make final the certification of the Settlement Class for settlement
purposes and hear any proper objections and arguments to the settlement, as well as any requests for an award of
attorneys’ fees and expenses and service awards for the Plaintiffs that may be sought by Class Counsel. The Court
will hold the Final Approval 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.
If the settlement is given Final Approval, the Court will not make any determination as to the merits of the claims or
defenses at issue in the Actions. Instead, the settlement’s terms will take effect and the lawsuits will be dismissed on
the merits with prejudice. Both sides have agreed to the settlement in order to achieve an early and certain
resolution of the lawsuits, in a manner that provides specific and valuable benefits to the members of the Settlement
Class.
If the Court does not grant Final Approval of the settlement, if a Final Approval is reversed on appeal, or if the
settlement does not become final for some other reason, Class Members will receive no benefits from the settlement.
Plaintiffs, GoDaddy, and the Class Members will be in the same position as they were prior to the execution of the
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settlement, and the settlement will have no legal effect, no class will remain certified (conditionally or otherwise),
and Plaintiffs and GoDaddy will continue to litigate the lawsuits. There can be no assurance that, if the settlement is
not approved, the Settlement Class will recover more than is provided in the settlement, or indeed, anything at all.
WHO REPRESENTS THE CLASS?
The Court has approved the following attorneys to represent the Settlement Class. They are called “Class Counsel.”
You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at
your own expense.
John R. Cox Evan M. Meyers Earl P. Underwood, Jr.
JRC Legal Eugene Y. Turin Underwood & Riemer, PC
30941 Mill Lane McGuire Law, P.C. 21 South Section Street
Fairhope, AL 36532
Suite G-334 55 W. Wacker Drive, 9th Floor
[email protected]
Spanish Fort, AL 36527 Chicago, IL 60601
Tel: (251) 990-5558
[email protected] [email protected]
Tel: (251) 517-4753 Tel: (312) 893-7002
Phillip A. Bock Trinette G. Kent Mark K. Wasvary
David M. Oppenheim Kent Law Offices Mark K. Wasvary, P.C.
Tod A. Lewis 3219 Camelback Rd. 2401 West Big Beaver Road,
Bock, Hatch, Lewis & Ste. 588 Suite 100
Oppenheim, LLC Phoenix, AZ 85018 Troy, MI 48084
134 N. La Salle St. [email protected] [email protected]
Ste. 1000 Tel: (480) 247-9644 Tel: (248) 649-5667
Chicago, IL 60602
[email protected]
Tel: (312) 658-5500
Michael McMorrow
McMorrow Law, P.C.
One North LaSalle Street
44th Floor
Chicago, IL 60602
[email protected]
Tel: (312) 265-0708
WHERE CAN I GET ADDITIONAL INFORMATION?
This Notice is only a summary of the proposed settlement of these lawsuits. More details are in the Settlement
Agreement, which, along with other documents, can be obtained at www.DrazenTCPASettlement.com. If you have
any questions, you can also call the Settlement Administrator at (866) 977-0753 or Class Counsel at the numbers or
email addresses set forth above. In addition to the documents available on the Settlement Website, all pleadings and
documents filed in court may be reviewed or copied in the Office of the Clerk. Please do not call the Judge or the
Clerk of the Court about this case. They will not be able to give you advice on your options.
AA7355 v.06
Reference
- Cited By
- 3 cases
- Status
- Published