The Review of Banking & Financial Services Publishes Akin Gump Article on Defeating Class Certification in TCPA Cases

The Review of Banking & Financial Services has published the article “Defeating Class Certification in Telephone Consumer Protection Act Cases,” written by Akin Gump litigation partner Neal Marder and associates Andrew Jick and Kelly Handschumacher. The article discusses the Telephone Consumer Protection Act (TCPA), which was enacted in 1991 “to ban certain types of unsolicited phone calls, text messages, and faxes.”

Marder, Jick and Handschumacher begin with some background on the TCPA, which, they note, provides “a private right of action for statutory damages of $500 per violation, or as much as $1,500 per violation if the conduct was ‘willful.’” They write that, despite the intent of the statute “to permit consumers to seek a modest remedy on an individual basis, the plaintiff’s bar has seized on the TCPA as a mechanism for aggregating the claims of large numbers of people with potentially enormous claims for statutory damages.”

The article then gives an overview of class certification requirements under the TCPA and discusses several cases in which defendants have defeated it. This includes examples in which it was argued that a key element of liability “cannot be adjudicated on a classwide basis, but instead depends upon individualized proof.” They also discuss cases where there was a lack of adequacy or typicality.

Finally, it is noted that some courts “have expressed concern that TCPA class actions can expose companies to enormous liability out of any proportion to the actual harm caused by the conduct.” As a result, the authors write, the courts have denied class certification on this basis.

To read the full article, please click here.