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Weary Traveler has a dilemma - Personal Vendication vs. Vendication of the People


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I'd like to hear the opinions of the board on a subject matter.  I'm going to be somewhat vague, but would like to hear people's opinions.  Lets assume for a moment that you have  numerous TCPA violations that would allow you to be a Plaintiff in a lawsuit against "The ACME Collection Agency".  ACME is notorious, large and has over the years treaded on the Consumer Rights of people throughout the Nation.

 

Your personal attorney could sue ACME in Federal Court and you stand to win a reasonable sum of money.  Lets say >$20,000.

 

Your counsel is approached, and you are asked to be the named class representative in a Class Action Lawsuit against ACME, by a very high profile Class Action Law Firm.  This would no doubt subject you to deposition and it would likely go to trial. Historically in class action lawsuits, the named class members receive larger "incentive awards" than the other 750,000+ members of the class and rightly so, in my humble opinion; They are, after all, subject to the trial, time off from work for depositions, and the personal stress related to the legal system.

 

This year, the 9th Circuit Court of Appeals, ruled on Radcliffe v. Experian Information Solutions, Inc.  because the “incentive rewards” for the named members were explicitly conditioned upon their acceptance of the settlement. Under the agreement, if the class representatives had reservations about the settlement’s fairness, they could thus either remain silent and accept $5,000 or object and risk getting about $26 if the court approved the settlement over their objections. [sic].  The 9th circuit was under the opinion that this biased the class representatives and prevented them from being objective stewards of the class.

 

So, clearly, one might assume that as the class representative, you might receive $20.00 or whatever small amount typically is awarded in these types of cases.  You would, however, have the satisfaction of knowing that ACME has been held accountable for its actions against countless people.  Then again, you could quietly have your counsel file a case against ACME in Federal Court as indicated above.

 

I ponder and am over the Radcliffe ruling and it's interpretation moving forward.  Couldn't the attorneys in future class action law suits simply negotiate fixed monetary awards for named class members, that were not contingent on their opposition or acceptance of the settlement?

 

What would you do? Fight for yourself (more money) or Fight for Everyone (possibly no money). :tempted:

 

 

 

 

 

 

 

 

 

 

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Fight for yourself, because making a class action dilutes the punishment of defendant. That is unless there are 10,000 named defendants. Fighting for yourself will help the people, the class action attorneys are just trying to bite onto good cases to get mondo fees(which they usually do deserve do to uncovering a bunch of things). So if they have personally damaged you fight for yourself. Let the class action attorneys dredge up other named plaintiffs.

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Excellent question @WearyTraveler

 

While the other members bring up points you should consider, you also need to know that as a class representative in a TCPA case, where damages can be awarded on a per violation basis, it is possible to be a class representative and recover a fair amount of damages. It depends upon how the class settlement is structured. Let me give you an example.

 

Most people are not aware that class action settlements can be structured include opt in provisions, instead of the traditional opt-out. With an opt in settlement, the putative class member must actually file a claim to be included in the class. This is opposite the usual, "if you do nothing, you'll get a check for $1.00 in about a year" settlement. When a class settlement is structured as an opt in, using the TCPA for example, the settlement will award the class member an agreed upon sum for each violation (maybe $25 bucks, maybe $250, probably not $500). The class member then files a claim notice submitting his proof (as determined in the settlement agreement) of how many unlawful calls he received. The structure of the settlement is pretty much limited to the creativity of the parties, as long as the court agrees its fair to the class.

 

Say, for example, the settlement provides for $50 per call. Some class members might file a claim for 2 calls, others may have 100 calls. You, as a representative would get your $50 per call, plus (more than likely) an incentive. When you consider all the factors, being a class rep where you have an opt in settlement may not bad be at all. You can even negotiate a cy pres  if there's a bunch of settlement money left over, perhaps to your local legal aid society, or NACA; something like that.

 

You indicate you might have a claim worth $20K. For discussion purposes, lets say 40 calls at $500 bucks. Even if you get the full $20K, your lawyer is going to get his cut, maybe as much as 40%, leaving  you with around $12K. If you're in an opt in class that pays $50 per call you might expect to receive $2K for the calls and maybe, say, $5K to $10K incentive (depending upon the circumstances). Attorneys are compensated from a separate fund. That's not too bad. Plus, you help a lot of other people who might only have a few violations (not economically feasible to bring individual suit). 

 

It's something to think about.

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Everyone who has responded has offered some great insight and given you plenty to think about.  Well, here's my 2 cents.  I tend to lean more toward Nascar's way of thinking.  This is not because I'm a do-gooder, consumer advocate.  I'm not.  It's because of the stories I've read on this site.  It's because I know that the vast majority of consumers have never heard of the FDCPA, TCPA, or FCRA.  Those consumers have no idea that they've been violated and that they have rights.

 

If I'm not mistaken, in a class action suit, the defendant would have to provide names of other consumers in your state who received the same kinds of calls that you received.  Those consumers would receive letters informing them of the possible violations committed by the CA. 

 

Some of the consumers will throw the letter away.  But others might pay attention.  For the first time, they'll learn that there are phone calls that violate their rights and that they have legal recourse.

 

Attorneys are going to get paid no matter what.  Sure they get paid more in a class action, but it's not about the attorneys.  People will learn about their rights.  Also, the CA will have to shell out more in a class action than they would for a single plaintiff. 

 

Either way (class action or you alone), it's not going to stop the CA's behavior.   But a class action could possibly provide some valuable information to uninformed consumers. 

 

Isn't that what we do on these boards?   We try to help people that we don't know and will never meet.  The members do it because we've "been there, done that" and know what it's like to feel frustrated, scared, and angry.   We can't help everyone who comes here, but everyone who comes here DOES learn something.  They learn that there are laws they never knew existed and that they have rights.

 

If it were me, I'd think of every possible question I might have, write them down, and talk to the attorney again.  Get your questions answered so that you can make an informed decision.   If you have to sign a contract, understand every word of it.  Then, if you feel a class action is not for you or that it wouldn't help anyone else, you'll be comfortable with your decision.

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I will just comment on the Radcliffe case.

 

The Court in Radcliffe did not reverse because the named plaintiffs got incentive awards.  It did not reverse because of the size of the award.  It reversed because the agreement specifically conditioned the incentive award upon each representatives' agreement to the terms of the settlement for the entire class.  The Court held that such a conditional award prevented the class representatives from being objective about the fairness of the settlement to the class as a whole.

 

A class representative cannot "expect" to receive an incentive award.  The award itself, and the amount, are left to the discretion of the judge.  The amount of the award should be in proportion to the amount of work that the named plaintiff was required to perform in his/her duties as a class representative.  Awards much larger than $5,000 have been approved where appropriate.  But even small awards have been disapproved if the class representatives did little or no work in fulfilling their duties.

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I will just comment on the Radcliffe case.

 

The Court in Radcliffe did not reverse because the named plaintiffs got incentive awards.  It did not reverse because of the size of the award.  It reversed because the agreement specifically conditioned the incentive award upon each representatives' agreement to the terms of the settlement for the entire class.  The Court held that such a conditional award prevented the class representatives from being objective about the fairness of the settlement to the class as a whole.

 

A class representative cannot "expect" to receive an incentive award.  The award itself, and the amount, are left to the discretion of the judge.  The amount of the award should be in proportion to the amount of work that the named plaintiff was required to perform in his/her duties as a class representative.  Awards much larger than $5,000 have been approved where appropriate.  But even small awards have been disapproved if the class representatives did little or no work in fulfilling their duties.

 

I wonder how a Judge would feel about an award equal to what the Class Representative would have received if they would have filed an individual case? 

 

It doesn't seem unrealistic to me, at least.  I mean, the Class Representative, goes through the deposition process, may have to appear in Court, etc. when in reality they could file in Federal Court with their personal attorney and likely have a similar outcome if the merits of their case were sound. :unsure:

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There is nothing wrong with class action suits. I am currently the lead plantiff in a TCPA and FDCPA case. We joined the TCPA after it was filed, but am named in the suit nonetheless, and the FDCPA case is against a foreclosure mill.

 

Given the SOL on FDCPA cases, we felt it was appropriate to move it forward as a class claim, and have no reservation in having done so. On a side note, I got a check for a class action case yesterday from BoA $47!!

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I wonder how a Judge would feel about an award equal to what the Class Representative would have received if they would have filed an individual case? 

 

It doesn't seem unrealistic to me, at least.  I mean, the Class Representative, goes through the deposition process, may have to appear in Court, etc. when in reality they could file in Federal Court with their personal attorney and likely have a similar outcome if the merits of their case were sound. :unsure:

 

Most courts don't have a problem with incentive awards provided that they are reasonable in light of the tasks that the class representative had to perform for the rest of the class.  The lawyers need to explain to the court in declarations what the class representative was asked to do.

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  • 2 weeks later...

Well, after careful consideration, I've decided to forgo the class representative option related to my TCPA claims against "Acme" and will instead move forward with a TPCA case against them filed in Federal Court. 

 

I would, however, like something explained to me in regards to the fines associated with the TCPA.  I understand that TCPA fines are $500 per incident.  What I'm struggling with is the treble damages.  It says that the Defendant had to "willfully or knowingly" violate the TCPA.  Some courts seem to hold that the defendant must know its actions violate the TCPA, while others hold that a plaintiff need only show that the defendant willfully or knowingly sent the unsolicited fax, or made the prerecorded call, concluding that knowledge of the law is unnecessary.

 

So, in my hypothetical situation, Big Bank hires Acme Collection to work the defaulted account.  In looking through the data provided by Big Bank, there is no record of the cellphone number associated to this account. No expressed consent was ever given to call the number and Big Bank has no documentation to support the number.  Acme uses other means to obtain the number [Willful]. They know that this number holds no associate to the account in question.  Acme has been sued for TCPA violations on a large scale before.  They are well aware of what constitutes a TCPA violation.  Modern Technology also allows them to determine if a specific number is a cellular number. [knowingly] Irrespective of this, they launch an autodialing campaign directed towards this number.

 

Given the above presented information, would not this qualify for treble damages? or am I completely off base here?

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