A Settlement From a Different Era?: Huge New TCPA Settlement Calls to Mind the Glory Days of TCPA Risk
As I’ve reminded folks a few times recently, the TCPA is the single largest cash cow in American history for the Plaintiff’s bar. More multi-million dollar settlements have been reached under the TCPA than any other federal statute–and it's not even close.
Mercifully, however, the settlement dollars have been slowing down some in recent years and the overall “market” for TCPA settlements has been trending steadily down as risk around ATDS issues, standing issues and constitutional issues weigh in favor of the Defense.
In Iverson v. Advanced Disposal Servs., CASE NO. 3:18-cv-867-BJD-JBT, 2021 U.S. Dist. LEXIS 149339 (M.D. Fl. August 6, 2021), however, the Plaintiff broke the trend and managed to score a massive–and seemingly illegal- settlement haul of the sort I haven’t seen in five years or so.
In Iverson, the Defendant agreed to settle a TCPA suit for $3.5MM in favor of 27,364 class members, which is likely to yield a recovery to class members in the range of $795.00 to $1,590.00 per class member.
While these numbers aren’t unprecedented, they are really on the high end of the spectrum. Indeed, at nearly $128.00 a class member this settlement is roughly 20-40x the size of a reasonable settlement (in my view at least.)
Still, I can’t say this was a bad deal for the Defense–I just don’t know enough about the facts to know what drove the result. TCPA cases can obviously be extremely dangerous and I’ll never fault a Defendant for wiping away liability where the deck is stacked against it–your first loss is your best loss, and all that. And Keogh is always a dangerous foe.
One item that is remarkable, however, is that the settlement includes an incentive award to the Plaintiff. Yet the Eleventh Circuit has recently held that such awards are flat illegal. So unless I’m missing something–am I?–this settlement seems to have a poison pill locked in.