No Double Recovery by Class Members: Revocation Class Stricken as Duplicative of No Consent Class
As abusive as the Telephone Consumer Protection Act’s statutory damages of $500-$1,500.00 per call, some courts struggle with whether that recovery should be even higher.
It is not uncommon for Plaintiffs to look for ways to double or even triple this award by arguing that a single call might violate multiple sections of the TCPA—for instance a single marketing call made using an ATDS to a cell phone without consent might also violate the TCPA’s DNC provision (theoretically) yielding a double recovery under the statute.
But can a class member recover for the same call twice merely because a call was made without initial consent and after the class member asked for calls to stop?
That was the issue in Amann v. Low Va Rates, Case No. 20-cv-180, 2020 U.S. Dist. LEXIS 201039 (S.D. Oh. October 28, 2020) and the magistrate judge reviewing the issue answered with a definitive: “no.”
In Amann the Plaintiff pleaded a rather typical TCPA no consent class, seeking to represent everyone that Defendant either concedes lacked consent or that obtained consent in the same manner in which it obtained the Plaintiff’s consent. (This definition, although clunky, is designed to evade failsafe and objectivity problems that plague many class definitions.)
Rather than stop there, however, the complaint went on to plead a revocation class, consisting of everyone that received a call after asking for calls to stop.
Notably, revocation classes are commonly stricken at the pleadings stage anyway because they are not never certifiable. The circumstances surrounding what was said regarding and what it meant are individualized as to each call. Moreover many individuals in most cases will have re-consented prior to the challenged calls, imbuing an additional level of individuality into the analysis.
But the Amann Defendant took a different angle—rather than challenging the revocation class in isolation the Defendant challenged that the revocation class was redundant to some degree of the no consent class, because some folks in the revocation class would also be in the no consent class. And a class member cannot recover twice for the same violation of the TCPA.
The magistrate judge reviewed the issue and agreed with Defendant. Distinguishing cases where multiple recoveries were allowed where a call violated two sections of the statute, the court held that the class members here were set to recover twice for a single call that violated the TCPA in only one manner—it was made without consent. And though it is true that the revocation class members might have had a stronger argument on willfulness, it does not follow that multiple recoveries are possible—rather willfulness enables an enhancement of a single recovery, not a separate statutory claim.
This is a really interesting case to keep in mind folks. Every time you see a revocation class glommed on to a no consent class you should consider bringing a similar motion. That said, the issue can be avoided with a rather simple modification to the revocation class definition—but I’ll let plaintiff’s counsels figure that out on their own.