Seventh Circuit Holds That TCPA Does Not Shift Attorneys’ Fees or Create Common Funds, Reverses Order Entitling Individual Plaintiffs To More Than $500 Per Violation

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In Holzman v. Turza, Nos. 15-2164 & 15-2256, 2016 U.S. App. LEXIS 12594 (7th Cir. July 8, 2016), the Seventh Circuit reversed an order that could have resulted in individual payments of $500 per violation plus attorneys’ fees, i.e., more than the $500 in statutory damages for which the statute provides.

After the plaintiff prevailed on the merits, the trial court directed the defendant to deposit $4.215 million into court, which represented the $500 in statutory damages for each of the 8,430 faxes at issue. It then ordered that one third of the $4.215 million be used to pay class counsel and that two-thirds of the $4.215 million be used to pay class members. Id. at *3. Class members would be sent a check in the amount of $333 per fax, i.e., two thirds of $500. If, however, a check was uncashed or undeliverable, class members who had cashed their checks would receive a second distribution of up to $167 (i.e., so that their total recovery could, in theory, reach $500 per fax).  Id. If any funds remained after that second distribution, then, and only then would they revert to the defendant. IdContinue reading

Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual

Since our December 8, 2015 blog post regarding the scope of vicarious liability, courts have continued to wrestle with the scope of vicarious liability under the TCPA and its ramifications with respect to class certification. A recent decision denying class certification based on lack of ascertainability of the class and commonality issues from the Southern District of Ohio in Barrett v. ADT Corp., No. 15-cv-1348, 2016 U.S. Dist. LEXIS 28767 (S.D. Ohio March 7, 2016), illustrates why class certification is an uphill battle in this context for plaintiffs in TCPA litigation. Continue reading