$6M TCPA class comparison could be one of the last
As we have explained in the past, the TCPA has produced more multi-million dollar settlements – and therefore more attorneys for millionaire plaintiffs – than any other law in American history.
Not surprisingly, these attorneys are finding ways to funnel money to special interest groups – ie the NCLC – that lobby to keep the TCPA nice and wide to allow for as many lawsuits as possible and to keep the sauce train going.
However, courts are (finally) pushing back. As we have documented, the 11th Circuit Court of Appeals has brought a flamethrower to these lawsuits, and the Supreme Court is currently in the process of reviewing the TCPA’s vague ATDS definition to explain once and for all why the law only for Random fire applies dialer (hopefully.)
Until then, however, a few “cleaning up” TCPA settlements will meander through the system. Most of these were completed in the months that followed markings and long before the Supreme Court granted critical review Facebook. But, like viewing light from distant stars, examining the conditions of these settlements today can give us a glimpse of the TCPA world as it existed at times in the distant past.
For example in Horton v. Cavalry Portfolio Serv. File number: 13cv307-JAH-WVG; File number: 16cv00211-JAH-WVG, 2020 US Dist. LEXIS 189489 (SD Cal. October 13, 2020) paid defendant $6 million to settle claims related to predictive dialer calls from 2009 through 2016. With about a million class members, that settlement works out to about $6.00 per class member on a claims basis – about the average “market” for a TCPA settlement a few years ago after the big one markings Decision of the Ninth Circuit Court of Appeals.
Since then, however, developments have shifted sharply in favor of the TCPA defendant. In fact, the $10,000 incentive award granted to Mr. Horton would not even be awarded in the subsequent eleventh circuit court Johnson. And with the SCOTUS review hanging over everyone’s heads, this sort of “ATDS” TCPA class settlement seems completely out of breath – at least for now.
Of course, it remains possible that the Supreme Court will advocate for this markings and maintains a wide reading/application of the TCPA. But with the government siding with Facebook on this appeal, and with Judge (soon to be Justice?) Barrett likely to be appointed to the Supreme Court, the odds are firmly in favor of a much tighter TCPA in May 2021.
On the other hand, with Democrats increasingly likely to take over Congress, TCPA 2.0 may be just around the corner. Also, a newly formed (and Democrat-led) FCC could return to the Wheeler-era TCPA expansionism. So TCPAWorld seems ready to give back again, even as it takes more back.
*Keyword Billy Joel’s She’s Always a Woman*
© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 288