More to the Story?: Turns Out TCPA Defendant Hit With $267MM Trial Verdict Rejected an $875k Demand at Mediation—is this Insurer Bad Faith?

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I love it when we have a chance to look deeper into the big TCPAWorld stories and share some fascinating tid-bits with our readers.

One of the biggest stories of 2019 was the huge $267,000,000.00 verdict entered against collection company Rash Curtis & Associates in a certified TCPA class action. Although the judgment was not nearly the biggest of 2019—that “honor” belongs to ViSalus who was hit for nearly a $1BB earlier in 2019—the award was certainly eye-opening for the collection industry that had mostly avoided such huge-dollar TCPA verdicts in the past.

The story somehow became even bigger this year when the Court refused to reduce the award on constitutional grounds and awarded an eye-popping $89MM ($89,000,000.00) in attorney’s fees to the Plaintiff’s legal outfit, the always dangerous Bursor and Fisher.

Well now we know a little bit more about the back story leading up to this train wreck on a dumpster fire. As gleaned from the decision in Perez v. Indian Harbor Ins. Co., CASE NO. 4:19-cv-07288-YGR, 2020 U.S. Dist. LEXIS 82546 (N.D. Cal. May 11, 2020)(Perez-IH), it turns out that the Defendant (allegedly) could have walked away from the entire mess for under a million bucks at a mediation back in September, 2017 but turned it down and decided to fight on. Ultimately it got creamed by a jury for roughly 300 times more than they (allegedly) could have settled for at mediation.

Uh oh.

Interestingly, the Defendant may or may not have insurance for the TCPA claim at issue—the insurer denied coverage but Rash Curtis asserted a right to defense and indemnity and assigned its rights to a bad faith insurance claim to the Plaintiff. That set the stage for the filing of the complaint in Perez-IH which set forth a litany of purported missteps by the insurer in handling potential resolution of the case. The proverbial cherry on top—of course—was the story of the $875k mediation offer that was oh-so-imprudently left on the settlement table. The complaint also explains that “Rash Curtis walked out and made no settlement offer” at the mediation, a fact which—if true— speaks to an Odessyian level of hubris by the Defense.

The Court in Perez-IH ultimately determined that the events at the mediation are not properly pleaded in the complaint and ordered such allegations struck at the insurer’s insistence. Nonetheless, the case lives on a the Court determined the bad faith claim was live even though the underlying judgment against Rash Curtis is currently on appeal to the Ninth Circuit. In all likelihood any chance that B&F will get paid for their work in the Perez trial hangs in the balance.

We’ll keep a close eye on this one.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. Pingback: BETTER THAN NOTHING?: Facebook Ruling Saves TCPA Defendant Over $15MM– But Another Quarter Billion is Still Owed on Massive TCPA Judgment – TCPAWorld

  2. It’s pretty bad that you don’t get a pin or whatever it is to be able to sign up for these things especially this one I know I’ve gotten tons of calls from this one there must be a way to look it up

    Reply

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