January 18, 2021

Volume XI, Number 18


January 15, 2021

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Steep Price: TCPA Defendant Sanctioned $48,622.22 for “Unethical” Conduct By Its Own Defense Lawyers

I’ll keep this one brief because I hate to dwell on a sanctions award, but there is an important lesson here.

As I reported a while back, a Defendant in a TCPA class action was stuck paying sanctions as a result of its counsel’s “unethical” behavior in contacting represented class members. 

As the Court put it in the latest order:

The Court held that “[d]efense counsel violated an ethical rule when they encouraged their client to contact an individual the lawyer knew to be represented by counsel, regarding the subject of the representation, without counsel’s consent.” (Id. at 8.) The Court found the communications with class members were misleading and coercive, and, thus, the Court granted Plaintiffs’ request for monetary sanctions. (Id.)

In an order entered today, the Court established an amount of those sanctions–ordering Defendant to pay $48,622.22 in fees and costs as a sanction for the “unethical” outreach by its counsel.

That’s a bad day at the office, folks.

The order can be found here: McCurley John – Order Granting Sanctions

As I reported previously, the lesson here is to avoid any conduct in class litigation that might be viewed as riding any ethical line. To go along with complicated substantive and procedural rules, the ethical rules in class litigation are often anything but clear– they don’t call this “complex” litigation for nothing.

So it is always best to be extremely careful when it comes to, for instance, contacting class members. While it is sometimes appropriate–indeed, it is occasionally necessary–to gather evidence from class members directly, traps for the unwary abound. Knowing when to conduct such outreach and how to do it safely is critical.

If you have questions in these murky depths most state bars offer an “Ethics hotline” where even experienced lawyers will sometimes turn for help. But again– it is always best to BE CONSERVATIVE. Never engage–or allow your counsel to engage–in communications that are designed to (or might) trick class members. You must be transparent and above board in these contacts. After a class is certified it may be too late to contact class members at all, without court approval. Also always assume the other side–and even the court–is going to find out exactly what you’re up to. If you’d be uncomfortable explaining a contact strategy to a court you probably should think twice about doing it. I cannot emphasize enough how cautious you need to be in this area.*

Otherwise you may be paying for the other side’s attorneys fees.

*As always, this blog is not legal advice just my take on a case and the take aways from the decision.  Please SEEK EXPERIENCED COUNSEL if you have questions about TCPA class actions, and especially when it comes to contacting potential class members. This is dangerous and important stuff.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 339



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...