As we’ve explained in the past, the TCPA has produced more multi-million dollar settlements-and therefore more millionaire plaintiff’s lawyers-than any other statute in American history.
Unsurprisingly, these lawyers find ways to funnel money to special interest groups-i.e. the NCLC—that lobby to keep the TCPA nice and broad to enable as many lawsuits as possible and keep the gravy train rolling.
Courts are (finally) pushing back, however. As we have documented, the Eleventh Circuit Court of Appeals has taken a flame thrower to these lawsuits and the Supreme Court is currently set to review the TCPA’s vague ATDS definition to, once and for all, explain why the statute only applies to random-fire dialers (hopefully.)
Until then, however, a few “clean up” TCPA settlements continue to wind their way through the system. Most of these were entered into in the months following Marks and well before the Supreme Court granted critical review in Facebook. But—like viewing light from far away stars—reviewing the terms of these settlements today can give us insight into the TCPAWorld as it existed at points in the distant past.
For instance in Horton v. Cavalry Portfolio Servs., Case No.: 13cv307-JAH-WVG; Case No.: 16cv00211-JAH-WVG, 2020 U.S. Dist. LEXIS 189489 (S.D. Cal. October 13, 2020) the Defendant paid $6MM to resolve claims related to predictive dialer calls made from 2009 to 2016. With about a million class members this settlement comes in at about $6.00 per class member on a claims made basis—right about the average “market” for a TCPA settlement a couple of years ago following the big Marks decision out of the Ninth Circuit Court of Appeals.
Since then, however, developments have powerfully shifted in TCPA defendant’s favor. Indeed, the incentive award of $10k permitted to Mr. Horton would not even be allowed in the Eleventh Circuit following Johnson. And with the SCOTUS review hanging over everyone’s head these sort of “ATDS” TCPA class settlements seems to be entirely out of steam–at least for now.
It remains possible, of course, that the Supreme Court sides with Marks and maintains a broad reading/application of the TCPA. But with the government siding with Facebook in that appeal and with the likely nomination of Judge (soon to be Justice?) Barrett to the Supreme Court the odds are decidedly in favor of a much narrower TCPA come May, 2021.
Then again, with Democrats are looking more and more likely to take over Congress perhaps TCPA 2.0 is just around the corner. Plus a newly-constituted (and Democrat led) FCC might revert back to Wheeler-era TCPA expansionism. So TCPAWorld seems poised once again to give back some even as she takes back more.
*Cue Billy Joel’s She’s Always a Woman*
And stay tuned folks because a HUGE post-election compliance summit is in the works that will answer all of YOUR questions on what the U.S. election results might mean for the TCPA and Consumer Privacy worlds. More to come.