Michael Carroll Apr. 15, 2016, 9:45am


WASHINGTON (Legal Newsline) - Defendants in class action lawsuits involving the Telephone Consumer Protection Act remain largely in litigation limbo despite the U.S. Supreme Court’s decision earlier this year limiting the so-called “pick-off” defense.

The high court issued its decision in Campbell-Ewald Co. v. Gomez in January, but a ruling in Robins v. Spokeo Inc. remains at least a couple of months away.

Meanwhile, a number of federal court cases have been stayed pending a court review of Federal Communications Commission rulings that expanded the TCPA, the 1991 law that helps consumers shield themselves from unwanted telemarketing calls, text messages and faxes. That review is being carried out by the U.S. Court of Appeals for the District of Columbia Circuit.

The Supreme Court justices decided that a defendant in a class action case could not make the case moot by “picking off” a plaintiff’s claim – that is, offering to pay a plaintiff the amount of statutory damages being sought before the case became a full-fledged class action.

The court, however, did leave open the possibility that putting the proposed payment in the registry of the court overseeing the case – rather than putting forth simply an offer alone – might be sufficient for a defendant to head off a more expensive class action suit, Ohio attorney Kevin LaCroix, who specializes in management liability issues, told Legal Newsline. So a “pick-off” along those lines might carry the day, he said.

“I would certainly try that and see if it would succeed,” he said, adding that lower courts will be wrestling with that issue until it’s inevitably brought back up to the Supreme Court again.

The Spokeo case, meanwhile, remains a wild card. In that case, the high court will determine if a plaintiff who suffers no specific harm but claims a violation of a federal statute, such as the TCPA, has standing to mount a legal action in federal court.

LaCroix said of the Spokeo case that, “It could make Campbell-Ewald irrelevant depending on how it’s resolved.” For example, a court decision that alleging a statutory violation is not sufficient to establish standing in federal court could put the brakes on a number of “no-harm” lawsuits, he said.

LaCroix said one strategy for defendants facing TCPA class action lawsuits might be to motion for a stay until the Spokeo decision is issued in June. A better move, however, might be to come up with a dollar figure equal to the statutory amount a plaintiff is seeking, he said.

  

“Then deposit that amount in the registry of the court and move for an entry of judgment,” LaCroix said. That’s a move not expressly ruled out by Campbell-Ewald, he said.

He also said that while a stay is in place, defendants can continue to negotiate for lower settlements, though that’s difficult to do with class actions.

“For plaintiffs’ lawyers, if they feel they have viable class actions, they have huge incentives not to settle,” said LaCroix, who serves as executive vice president of RT ProExec.

He said that he’s hopeful that the sequence of court cases will eventually lead businesses to become more aware of the ramifications of the TCPA, which was enacted well before many of today’s advanced communications technologies were fully developed.

“Businesses just need to be more aware of the existence of the law,” he said.

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