As everyone knows, Telephone Consumer Protection Act (“TCPA”) cases, especially class actions, are primarily driven by the attorneys who expect to receive a third or more of potentially multi-million dollar settlements while the named plaintiffs receive at most a payment of a few thousand dollars. As such, the client generation process has become very competitive—I have seen Facebook popups, Google word search popups, and now a Reddit link from a TCPA class action plaintiff’s attorney. See https://www.reddit.com/r/IAmA/comments/3cthh6/i_am_attorney_jeremy_glapion_and_i_sue_companies/.
Comment: The post is archived, so I’m not sure if Glapion still uses this means to create clients. He claims he can obtain damages for more than one allegation per call, i.e. meaning up to $3,000 per call, something rejected in at least one court of appeals ruling.
Seventh Circuit Court of Appeals
The Seventh Circuit Court of Appeals has rejected the argument of a defendant in a TCPA fax case which attempted to “make moot” a plaintiff’s claim by depositing the full amount of alleged damages with the Court. The argument goes that this deposit therefore made plaintiff’s claim moot, and the case could not continue.
Comment: This argument in various forms has been rejected repeatedly by the Supreme Court and other courts and seems unlikely to be of worth in future defense efforts.
U.S. Department of Justice
On June 5, 2017, Judge Sue E. Myerscough awarded the U.S. Department of Justice, the Federal Trade Commission, and the states of California, Illinois, and North Carolina $280 million in damages after concluding it was responsible for millions of “do-not-call” violations over years of “careless and reckless conduct.” See https://www.ftc.gov/news-events/blogs/business-blog/2017/06/court-orders-280-million-dish-network-largest-ever-do-not.
Comment: Dish’s course of conduct cited by the judge shows to me that this award could have been avoided by due diligence dating back a decade with regard to supervision of agents and subagents by active compliance departments and vigilant follow-up on complaints actually received regarding those agents’ behavior by Dish Network.
On June 7, 2017, U.S. Department of Justice Attorney General Jeff Sessions announced that the United States will no longer enter into any agreement on behalf of the United States and settlement of federal claims that provides for a settlement payment to non-governmental third-parties which were not directly harmed by the conduct. See https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-ends-third-party-settlement-practice.
In class actions, remainder funds left after individual claimants are paid are often subject to a cy-près award donating the remaining money or a portion of the remaining money to a charity. This federal announcement will eliminate that practice when the federal government has a claim.
Comment: In some class actions, where the real party of interest is often plaintiff’s attorneys, settlements have been proposed where the individual claimants receive nothing, and the only entities being paid by the settlement funds were the plaintiff’s attorneys and designated charities. The justification behind this structure was that the amount of an individual payment would be so small as to make administration of that payment impossible.
U.S. Supreme Court
On June 12, 2017, Justice Neil Gorsuch delivered his first opinion on behalf of a unanimous Supreme Court in a Fair Debt Collection Practices Act (“FDCPA”) case. The FDCPA, like the TCPA is used by class action attorneys and in this case lawyers purportedly representing a class sued alleging that an entity which purchased debt from a creditor was collecting debt owed to “another” and thus not a debt collector under the statute.
The Court disagreed. “… [B]y its plain terms [the statute] seems to focus our attention on “third-party collection agents working for a debt owner—not on a debt owner seeking to collect debts for itself.” The plaintiffs’ attorneys, however, focused on the word “owed” meaning a debt collector would include persons collecting a debt previously “owed ….” Gorsuch disagreed, “… this much doesn’t follow even as a matter of good grammar, let alone ordinary meaning.” Henson v. Santander Consumer USA, Inc.
Comment: The plaintiffs’ attorneys lost at trial and at the appellate level, and their willingness to expend considerable effort to appeal to the Supreme Court shows the high stakes involved in these class actions—stakes risked by the plaintiffs’ attorneys not the plaintiff himself, who is likely little more than a pawn.
A California court has ruled that a TCPA claim against a debt collector could proceed despite the plaintiff’s only claimed damage being “invasion of privacy”. Ma v. Convergent Outsourcing, Inc. (C.D. Cal Jun. 13, 2017).
Comment: It remains to be seen whether actual harm will be required for TCPA claims to be made, but this case indicates that a claim of emotional distress added to the bare procedural harm of a TCPA violation means the case can proceed.
A Florida judge has approved a class action settlement against JP Morgan Chase Bank for wrong number calls placed using an automatic telephone dialing system. James v. JP Morgan Chase Bank (M.D. Fla. Jun. 5, 2017). The Court approved an attorney’s fee of 30 percent of the $3.75 million settlement fund.
Florida’s governor has signed an act (HB 467) removing the five year expiration period from its state “do-not-call” list, i.e. if a person adds his or her telephone number to the state “do-not-call” list, it will remain there permanently and will not be removed after five years.
An Illinois court has denied certification of a class action of recipients of “junk faxes” holding that the plaintiff was “professional” and tied unethically to his counsel, well-known plaintiffs’ class action fax attorneys. Physicians Healthsource, Inc. v. Allscripts (N.D. Ill. Jun. 2, 2017).
A Missouri court has struck from evidence the declaration of Robert Biggerstaff, an “expert” often hired by TCPA fax class action attorneys. Giesmann v. American HomePatient, Inc. (E.D. Mo. Jun. 22, 2017). The plaintiff’s attorneys did not disclose Biggerstaff as an expert when required to do so and the judge agreed with defense that his testimony was therefore inappropriate. While the court concluded that the behavior was not bad faith, it did note it was “somewhat suspect”.
A bill (SB 393) which would have banned individuals convicted of criminal offenses from engaging in telemarketing or conducting opinion polls has died in committee.
Vermont has passed a law (SB 72) which requires telephone solicitors and persons soliciting charitable contributions transmit accurate telephone number and name.