Eleventh Circuit Denies En Banc Request in TCPA Case Related to Class Action Incentive Awards

Nearly two years after it issued its opinion, the Court of Appeals for the Eleventh Circuit has denied an en banc rehearing request in a Telephone Consumer Protection Act case against a debt collector, but four of the 11 judges felt strongly enough about the merits that they wrote a 30-page dissenting opinion about why the case should have been heard before the entire panel.

A copy of the ruling and the dissenting opinion in the case of Johnson v. NPAS Solutions can be accessed by clicking here.

Back in August 2020, a panel of judges from the Eleventh Circuit ruled that an incentive award of $6,000 for the named plaintiff in a case that accused a collector of violating the TCPA by using an automated telephone dialing system to contact him on his cell phone without consent, violated Supreme Court precedent, citing case law going back to the 1800s.

Given the impact that the ruling could have on class action litigation, Judge Jill A. Pryor of the Eleventh Circuit, joined by Judge Robin Rosenbaum, Judge Charles Wilson, and Judge Adalberto Jordan apparently voted for the rehearing “to correct the panel majority’s grave error,” Judge Pryor wrote in her dissent.

At this point, the case has little to do with debt collection or even the TCPA; it is all about class actions, and the awards that result from their resolutions.

Judge Pryor painstakingly lays out her arguments why the original panel mis-applied rulings from two Supreme Court cases that were decided in the 1880s and prohibited District Courts from approving incentive or service awards for class representatives in settlements. In its ruling, the panel “adopted a position that had never been embraced by any court,” Judge Pryor wrote. “No other circuit has gone down this path. Given the panel majority opinion’s novel reading of these cases, the circuit split it occasioned, and the magnitude of its likely impact, this case is more than worthy of en banc review. Unfortunately, by denying rehearing en banc, our court has struck a lasting blow to class actions as a device for righting wrongs in this circuit.”

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