So I had a bunch of great quotes in Law360’s breakdown of consumer protection litigation trends yesterday. Really nice article overall, you should check it out.
A couple of important take aways for TCPAWorld from the underlying data published by LexMachina:
- While TCPA cases dropped overall from 2016-2020 the number of TCPA class actions actually went up during that timeframe and remain 50x higher than they were just seven years ago. The threat of TCPA litigation remains ever present.
- According to the LM report, TCPA litigation is the only type of consumer protection litigation where Plaintiffs are more likely to prevail than Defendants. That’s right, unlike in most consumer protection litigation, the TCPA defendants are more likely to lose than win (not my clients, of course–talking about overall numbers.)
- The data also confirms that a much higher proportion of TCPA suits (over 50%!) are filed as class actions as compared to other types of consumer protection litigation.
- Manufactured TCPA lawsuits likely remain a constant problem with a single TCPA Plaintiff filing more than 135 putative TCPA class actions in a three year period. Other notable “repeat players” include a business that filed 85 putative TCPA class actions. Notably these two individuals alone filed more cases than the FTC and the CFPB combined, according to the report. This is just gross and really highlights the abuse of the legal system that some consumers (and their lawyers) continue to engage in. (Hopefully this will slow down now that Credit One just put a head on a post.)
- Consumer protection defendants appear to be afraid of trial (again, not talking about my clients–overall numbers.) Of the 43,363 consumer protection cases noted in the report only 67—about one tenth of one percent—actually reached trial. And only 15 putative class actions tried nationwide over a three year span. With trial numbers that low—and settlement likelihood north of 88%– its little wonder the plaintiff’s bar is so active in this space. Its also no wonder the defense bar is getting rusty.
- FCRA cases have tripled over the last few years. The plaintiff’s bar has made a dedicated foray into credit reporting cases where attorney’s fees are widely available and inaccurate information in credit profiles is commonly observed–this wave of litigation is part of the reason we launched consumerprivacyworld.com last year (also found out dataprivacy.world). As I told law360, however, I’d expect to see this train of cases slow down a bit following Ramirez as plaintiffs will now need to demonstrate actual harm—as opposed to a mere statutory violation—in the most popular strain of FCRA litigation.
Interesting stuff, no?
Looking forward I expect TCPA class actions to continue to increase post-Facebook as American businesses continue to look for new channels of outreach with consumers. The TCPA class action phenomenon refuses to take a breather and the Plaintiff’s bar has simply shifted tactics post-Facebook to focus on pre-recorded calls and purported violations of the national DNC. Of course state enactments—like the Florida and Virginia mini-TCPA statutes—will continue to generate tons of litigation related to consumer outreach efforts.
Of course one category of consumer protection litigation—privacy litigation— has stunning potential upside. Suits under the Illinois Biometrics Protection Act and the California Invasion of Privacy Act—amongst others-have been extremely hot over the last couple of years and the trajectory for those suits is straight to the moon. As I told law360–“while Ramirez well pose a hurdle in some instances, I’d expect Lex Machina to have a whole new category of consumer privacy litigation reflected in their next report.”