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CEB Prac. Guide § 2B.33: Attorneys Fees

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3rd Cir. Affirms Arbitrator’s Right to Re-Allocate Arbitration Fees to Consumer Based on Claimant’s Alleged Manufacture of a TCPA Claim, Reverses Award of Attorney’s Fees Based on Indemnity Theory

by Scott J. Hyman |

In Credit One Bank, N.A. v. Lieberman, No. 22-1871, 2023 U.S. App. LEXIS 14853, at *1-9 (3d Cir. June 15, 2023), the Court of Appeals for the 3rd Circuit addressed re-allocation of arbitrator's fees and attorneys' fees based on an arbitrator's conclusion that TCPA claimant had manufactured the claim. Pursuant to a clause in the agreement, Adam instituted arbitration, claiming… Read More

District Court (Cal.) Says TCPA Affords No Right to Attorneys’ Fees: Says Nationwide Class Allegations Survive Bristol-Myers

by Scott J. Hyman |

In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2019 U.S. Dist. LEXIS 141400 (N.D. Cal. Aug. 20, 2019), Judge Spero confirmed that the TCPA affords no right to attorneys fees. It is undisputed that attorneys' fees are unavailable under the TCPA and Plaintiff has pointed to no source of authority that would allow him to recover attorneys' fees in this action.… Read More

District Court (Conn.) Refuses to Strike Attorneys’ Fee Prayer or Class Allegations from TCPA Complaint

by Scott J. Hyman |

In Owens v. Starion Energy, Inc., 2017 WL 2838075, at *8–9 (D.Conn., 2017), Judge Bolden refused to strike an attorneys' fee prayer from a TCPA class action. In Bell v. Survey Sampling International, LLC, a TCPA case, this Court rejected a similar motion to strike the plaintiff's reference to attorney's fees. Id. The Court in Bell stated as follows:  "[The… Read More

District Court (Wash.) Applies 30% of Recovery as Benchmark for Attorneys’ Fees in TCPA Class Action

by Scott J. Hyman |

In Ikuseghan v. Multicare Health System, 2016 WL 4363198, at *2 (W.D.Wash., 2016), Judge Settle surveyed TCPA class action settlements and found that 30% of the recovery was a proper benchmark for awarding attorneys fees in a TCPA class action. Here, the requested attorneys' fees represent 33% of the settlement fund. Ikuseghan argues district courts frequently grant fee awards of… Read More

7th Cir. Says TCPA Class Action Plaintiffs’ Counsel Can’t Base Fees Off of Total Value of Settlement Fund, Only the Value of Claimed Payments; Otherwise, It Would Make the TCPA a Fee Shifting Statute, Which It is Not

by Scott J. Hyman |

It's sort of fact specific, but the Court of Appeals for the Seventh Circuit in Holtzman v. Turza, 2016 WL 3648390, at *1-2 (7th Cir. 2016) held that the residue of a supersedeas bond goes back to the Defendant, and Plaintiff's counsel can't base its fees on the entire amount of the fund, only that which was paid out. Attorney Gregory… Read More

District Court (Cal.) Denies TCPA Text-Message Class Certification; Class Action Lacked “Superiority” Because, among other things, Plaintiff Could Not Demonstrate Class-wide Consent Due to Inadequacy of Defendant’s Vendor’s Records

by Scott J. Hyman |

In Smith v. Microsoft Corp., --- F.R.D. ----, 2014 WL 323683 (S.D.Cal. 2014), Judge Sammartino denied class certification in a TCPA text-message case arising from Microsoft’s sending unauthorized text messages promoting Microsoft's Xbox to cellular telephones in purported violation of the Telephone Consumer Protection Act.  Judge Sammartino was neutral on whether the Plaintiff’s interest was paramount and, in doing so,… Read More

District Court (Cal.) Finds TCPA Vicarious Liability Adequately Pleaded, Refuses to Strike Plaintiffs’ Prayer for Attorneys’ Fees

by Scott J. Hyman |

In In re: Portfolio Recovery Associates, LLC, Telephone Consumer Protection Act Litigation, here, Judge Houston held that the Plaintiff had adequately pleaded vicarious liability under the TCPA, and refused, at the pleadings stage, to strike Plaintiff’s prayer to recovery attorneys’ fees under the TCPA to the extent permitted by Code of Civil Procedure § 1021.5. In opposition, plaintiffs contend their… Read More