December 6, 2021

Volume XI, Number 340

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December 03, 2021

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HIGH DOLLARS: New $198.00 Per Text TCPA Settlement Was Entered into Just Ahead of Facebook Ruling

So here’s a quick but really remarkable story.

You will all recall that there was near universal consensus back in January of this year that the Supreme Court was going to rule in favor of the defense position. That seemed all but guaranteed after Justice Barret–then Judge Barret–was confirmed to the Court after she had decided the Gadelhak opinion while still on the Seventh Circuit Court of Appeals. 

Unsurprisingly, the Supreme Court went on to write a unanimous opinion dumping the broad Marks approach and adopting a narrow read of the TCPA’s ATDS definition.

While Facebook has not yet proved to be the decisive case ender it seemed to be–tricky footnote 7 issues remain–one channel of communication, in particular, has seen its stock soar: text messages.

Case after case has been promptly dismissed in TCPA suits involving the use of text messages–particularly curated texts. Heck, even the Gross court reversed itself last week and dismissed a text suit.

That’s why I was pretty surprised to see the ruling in Saliba., No. CV-20-00503-PHX-JAT2021 U.S. Dist. LEXIS 196634 (D. Az.  October 13, 2021).

There it was revealed that the Defendant (who I won’t name) entered into a TCPA settlement in January 2021–when the Facebook writing was deeply on the wall– that resulted in the payment of $198.00 per text message received by class members.

That $198.00 per text is one of the highest valuations I have ever seen in a text message case–most such settlements are on a “per class member” or “per cell phone number” basis and not per call/text. And the fact that the settlement came in the shadow of the highly-anticipated Facebook ruling makes the deal even more remarkable.

Per usual, I must note that I have no idea what the background facts here. Presumably these marketing text messages were sent without any form of consent–and the case was brought in Marks territory–prompting the need for a resolution. Plus, it is always a gamble settling cases with a big ruling hanging over your head–if Facebook had gone the other way perhaps this settlement wouldn’t look so bad.

Still, at nearly 50% of the full value of the claim, I must begrudgingly admit that the Plaintiff’s counsel–who will receive 28% of the settlement fund–did pretty well for the class in this one. Not that there should be a class. Or that the TCPA is constitutional. Or that any of this makes any sense at all.

I should also point out that TCPAWorld articles continue to receive a pile of comments from class members in various settlements who never quite receive what the plaintiff’s lawyers seem to predict/suggest they should receive. I have no idea why that is–and I am not pointing fingers–but it is interesting to me.

Happy Monday folks.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 291
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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