A recent decision by the Eleventh Circuit will make it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (TCPA). In Salcedo v. Hanna, et al., Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019), the Eleventh Circuit ruled that a single text message did not cause sufficient harm to sue in federal court. As a result, “single text message” TCPA cases may be a thing of the past, at least in the federal courts across the three States in the Eleventh Circuit (Florida, Georgia, and Alabama). However, given conflict with a ruling by the Ninth Circuit, the issue may now be ripe for decision by the U.S. Supreme Court.
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Rikki, Don’t Autodial That Number! – Ninth Circuit Doesn’t Want You To Call Nobody Else (in violation of the TCPA)
Class action plaintiffs’ attorneys may argue that a recent ruling by the Ninth Circuit expands the scope of liability under the Telephone Consumer Protection Act (“TCPA”) to include calls or text messages sent on all modern telephone equipment, including personal smartphones. Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. Sept. 20, 2018).
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Mooting Class Actions by Offer of Judgment – Episode 2: The Ninth Circuit Strikes Back
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.
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The TCPA And Mortgage Servicing Rules: Caught Between A Rock And A Hard Place
Mortgage servicers are heavily regulated. Usually, the worst that can be said is that the laws and regulations are many, complex, and onerous. Sometimes, however, they are contradictory.
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Mooting Plaintiff’s Class Action Even After Plaintiff Refuses An Offer Of Judgment
For years, litigants have battled over whether a defendant’s offer of judgment, which completely satisfies the plaintiff’s individual claim, can moot a class action. In Campbell-Ewald v. Gomez, 136 S. Ct. 663 (2016), the U.S. Supreme Court recently held that no case is mooted when a plaintiff refuses to accept an offer of judgment. The Supreme Court, however, left open the question of what happens when a defendant follows through with its offer by tendering complete individual relief, depositing the monetary relief with the court, and moving for entry of judgment.
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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
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.
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The California Supreme Court Holds Consumer Class Action Waivers In Arbitration Provisions Are Enforceable Under Federal Law
On August 3, 2015, the California Supreme Court issued its long-awaited arbitration decision in Sanchez v. Valencia Holding Co., LLC, No. B228027. The Court held that the arbitration provision found in a standard form auto finance and sales contract widely used by auto dealerships and lenders throughout California is not unconscionable. Not surprisingly, the Court acknowledged the recent U.S. Supreme Court authority holding that the Federal Arbitration Act (“FAA”) preempts conflicting state law, and affirmed that California law must now recognize the enforceability of class action waivers contained in arbitration provisions under the FAA. Nevertheless, arbitration provisions can be rendered unenforceable, depending on a fact intensive analysis of unconscionability. The Court refused to apply a uniform, bright-line standard. The ruling is unlikely to stem the tide of litigation over the enforceability of arbitration provisions in high stakes class action litigation.
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Court Severs Term But Otherwise Enforces Arbitration Provision With A Class Action Waiver
In a victory for Sheppard Mullin and its client, in Trabert v. Consumer Portfolio Serv., Inc., __ Cal. App. 4th. __, 2015 WL 880949 (4th Dist. Mar. 3, 2015), the California Court of Appeal compelled arbitration and enforced a class action waiver after severing an arbitration term.
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Seventh Circuit Affirms Lodestar Method to Determine Attorneys’ Fees in TCPA Class Action Settlement
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.
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Ninth Circuit Rejects Percentage Method To Determine Attorneys’ Fees In Class Action Settlement
In Collado v. Toyota Motor Sales, U.S.A., Inc., Nos. 11-57013, 11-57023, 11-57030 (9th Cir. Dec. 16, 2013), the Ninth Circuit Court of Appeals reversed a district court’s attorneys’ fees award in a class action settlement alleging malfunctioning Toyota Prius headlights. The Ninth Circuit held that the district court incorrectly applied federal law instead of state law to determine the amount of recoverable attorneys’ fees. The district court should have used California’s lodestar method (reasonable hours times reasonable rates) and not the federal percentage of recovery method (25% benchmark).
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