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David Poell is a partner in the Business Trial Practice Group in the firm’s Chicago office, particularly focusing on the areas of consumer privacy and class action litigation.

As the Rolling Stones famously sing, “You can’t always get what you want.” And in the ever treacherous world of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., the Second Circuit has ruled that means a party to contract cannot unilaterally revoke consent to receive automated calls.
Continue Reading You Can’t Always Get What You Want—Second Circuit Affirms Parties Can Bargain Away TCPA Right To Revoke Consent To Automated Calls

In Campbell-Ewald v. Gomez, 136 S. Ct. 663 (Jan. 20, 2016), the Supreme Court resolved a split among courts and held that an unaccepted settlement offer of complete individual relief does not moot the plaintiff’s lawsuit.  However, the Court expressly left open the question of “whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and then the court enters judgment for the plaintiff in that amount.”  136 S. Ct. at 672. 
Continue Reading Mooting Class Actions by Offer of Judgment – Episode 2: The Ninth Circuit Strikes Back

On January 20, 2016, in a highly anticipated decision (see October 27, 2015 blog) that will have implications for class action practice nationwide, the U.S. Supreme Court ruled that an unaccepted offer of judgment sufficient to completely satisfy an individual claim does not moot that claim or any class claim. The Supreme Court’s decision partially resolves a vigorously contested question of constitutional law that has been the subject of great dispute among federal Courts of Appeals for the last decade—whether a Rule 68 offer of judgment for complete relief deprives a court of Article III jurisdiction to hear only a “case or controversy.”  In a 6-3 decision, the Supreme Court held that a live case and controversy still exists when a plaintiff refuses to accept an offer of judgment.  In so holding, however, the Supreme Court suggested that it might reach a different decision if a defendant deposits funds sufficient to satisfy the plaintiff’s individual claims, and then obtains a judgment from the trial court in this amount.        
Continue Reading Not Taking “Yes” For An Answer: U.S. Supreme Court Rules That Unaccepted Offer Of Complete Individual Relief Does Not Moot Plaintiff’s Individual Or Class Action Claim

Although not explicitly stated in the text of Rule 23, for several decades courts have held that a putative class must be clearly defined and based on objective criteria as prerequisites to class certification.  Courts and commentators alike have referred to this threshold showing as the “ascertainability” requirement without a common understanding of what exactly it means for a class to be ascertainable.  During the past few years, however, certain federal courts throughout the country have begun to adopt a more rigid view of Rule 23’s implicit ascertainability requirement, which has resulted in the short-circuiting of several class actions at the certification stage.  This trend has been most prominent in the Third Circuit, which now requires plaintiffs to prove that there is a “reliable and administratively feasible” way to identify all those who fall within the class definition.  See, e.g., Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).
Continue Reading The Pitfalls of Ascertaining Ascertainability: Seventh Circuit Declines to Adopt Heightened Threshold Requirement for Class Actions

In Americana Art China Company, Inc. v. Foxfire Printing & Packaging, Inc., 743 F.3d 243 (7th Cir. Feb. 18, 2014), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s attorneys’ fees award in a class action settlement arising from the defendant’s faxing of thousands of unsolicited advertisements in violation of the federal Telephone Consumer Protection Act.  In doing so, the Seventh Circuit reaffirmed the district court’s discretionary power to use the lodestar method, rather than the percentage method, to determine an appropriate fee award for class counsel.  The Seventh Circuit held that the lodestar methodology was properly applied and  permissible under the circumstances.
Continue Reading Seventh Circuit Affirms Lodestar Method to Determine Attorneys’ Fees in TCPA Class Action Settlement

The Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), prohibits “robo-calls” to cell phones, text messages and “junk” faxes without prior consent. It imposes statutory penalties from $500 to $1,500 per violation, regardless of any actual damage, and is thus increasingly popular with the plaintiffs’ class action bar. Though passed in 1991, there are relatively few Circuit Court of Appeals decisions regarding the TCPA. In August of 2013, however, both the Third and Seventh Circuits issued TCPA decisions—one involving the revocation of prior express consent and the other involving cy pres awards in TCPA class actions.
Continue Reading Third and Seventh Circuit Courts of Appeals Issue TCPA Decisions