Archives for September 2020

In our “new” normal of virtual communication and countless Zoom meetings, a lot of people struggle with being the best and most authentic version of themselves. In this 30 minute session, Executive Media Coach and Emmy winner, Katy Temple, arms you with tangible takeaways that will immediately make you better “on camera.”

insideARM’s Amy Perkins and Katy Temple look at 5 tips that will help you look your best, and get your message across effectively. They look at:

1) First Impressions: “A lot of people have said, well, I think people will understand [the mess, the clutter] because everyone’s going through so many things, and we understand that on one level. But the other part about that is: this is the new normal, and it could last forever for a lot of businesses.”

2) The Camera is Your Friend: No, really. “Think about it as somebody who loves you, who wants to see you succeed, who is the vessel to get your message out and your passion out.”

3) Energy: “The reality about a camera and energy is that it sucks the energy out of you. And that’s real. I mean, part of this challenge is that we’re trying to get used to the way that the camera is picking us up. Not maybe necessarily how we really feel that we are. And so that’s kind of a new skill that you want to excel at.”

4) Body Language: “When I’m talking about the studio or the messaging or the energy it’s got to merge with who you are; authenticity is key to body language.”

5) Class Participation: “Practice, be prepared and know what you want to say so that you’re ready to go when the camera’s on you. And it’s just another reminder to not forget to prepare, especially when we’re all just challenged, communicating and being engaged virtually right now.”

If you’re looking for more insight just like this, consider signing up – or signing your team up – for Women in Consumer & Commercial Finance (December 8-10). Genuine networking opportunities and real, honest career advice is in short supply. Don’t let 2020 pass without giving your career some attention. Sign up today.

Six months in to one of the worst pandemics/shut-downs any of us has ever lived through, and is there a light at the end of the tunnel? Or is that just an oncoming train? What an exciting time to be alive!

Here’s a rundown of state actions that may effect your business:

New York & New Jersey: If you have offices/employees in those states, know that their governors have added Arizona, Minnesota, Nevada, Rhode Island and Wyoming to the list of states where people need to quarantine for 14-days if they’ve visited there.

How this might effect you: If you have clients in those states, and you were thinking about sending people out there (sales people, auditors, etc.), you might think about not doing that, or know that when your employee returns to New York or New Jersey, they’ll need to quarantine for 14-days before they can be out and about.

California: Sick leave benefits have been extended from six to eight weeks.

How this might effect you: If you’re a California employer, it would be a good time to talk with an employment attorney to make sure your crossing the t’s and dotting the i’s on paid leave.

Illinois: A state moratorium on shutting off state-regulated utilities that was due to expire at the end of Septemer 2020 is now extended through the end of October 2020.

How this might effect you: If you’re collecting on utilities in Illinois and were set to hit “go” on October 1, don’t.

New York: The governor has signed an executive order extending NY’s moratorium on evictions and foreclosures to October 20.

How this might effect you: Similar to above, if you collect on evictions and you collect on evictions in New York and thought you were good to go, you aren’t. 

As more information comes in, we’ll publish additional content.

Agencies that collect debts in New York and New Jersey are likely no strangers to the law firm Barshay Sanders PLLC and their recent frequently-filed claim that the format of a collection letter—font size, location of the notice of validation rights, the use or lack of transitional language—overshadows the consumer’s validation rights under the Fair Debt Collection Practices Act (FDCPA). The courts have been ruling on these claims over recent months, and there seems to be a consensus: the claim fails. 

Statistics of the Letter Format/Overshadowing Claim

According to the iA Case Law Tracker, New York courts have ruled 15 times on this claim filed on behalf of the consumer by Barshay Sanders. In all but one decision, the debt collector succeeded on either a motion to dismiss or a motion on the merits. Of these 15 decisions:

• 14 were in New York, 1 was in New Jersey;
• 12 were decided on a motion to dismiss;
• 1 was decided on a motion for judgment on the pleadings; and 
• 2 were decided on motions for summary judgment.

The sole case where the debt collector’s motion to dismiss was denied occurred in New Jersey. In that case, while the first paragraph on the first page of the collection letter contained the validation notice under a large, bold heading (“DEBT VALIDATION NOTICE”), the bottom of the letter pointed to more rights on the back of the page that had second “DEBT VALIDATION NOTICE” heading with nothing underneath. Judge Vasquez found that this could confuse the least sophisticated consumer about whether validation notice on the front of the letter included all of his rights.  

These Claims Routinely Fails in New York

Notably, New York judges have routinely rejected these overshadowing claims every single time when they have come up for a decision. Typically, the claim asserts that the letter’s format—such as the font size, location of the notice of validation rights, the use or lack of transitional language, and so forth—cause the consumer’s validation rights to be overshadowed by the remainder of the letter. The courts have routinely found that the least sophisticated consumer would not be confused about their rights in what is likely a typical letter sent by collection agencies. Usually, the validation rights are in a stand-alone paragraph and in the same font size as the rest of the letter.

The most recent example of this claim failing is from yesterday’s decision in Schik v. Miramed Revenue Grp. In this case, the plaintiff alleged that the letter contains bolded boxes that bring a consumer’s attention to the amount due, request for payment, and where to mail payments. This could, allegedly, cause the least sophisticated consumer to not notice the paragraph containing his validation rights. The letter in question can be found here.

The court was not convinced:

Looking at the Collection Notice in its entirety, the Court strongly disagrees with Plaintiff. Plaintiff argues her rights are difficult to read. However, while the rights are in a smaller typeface than other language in the Collection Notice, they are easy to read. Further, they are the same size as, and located between, other language instructing Plaintiff how to pay, set up a payment plan, or pursue a settlement, casting doubt on Plaintiff’s assertion that they appear boilerplate, like “fine print,” or unimportant. Plaintiff’s assertion that the rights may be overlooked is similarly without merit. They are written in the middle of the page. Other courts have held rights can even be placed on the back of the letter, so long as they are not overshadowed or contradicted by other material. 

(Internal citations omitted.) The court granted the motion to dismiss.

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insideARM Perspective

This type of analysis is crucial when considering litigation defense strategies for FDCPA claims. The iA Case Law Tracker (CLT) makes the task of doing this type of research ridiculously easy—it took me all of about 5 minutes to run a search for these specific claims and read through the decision summaries in the CLT. (This same task would have taken hours using traditional legal research methods.) In addition, the weekly trends and analysis report—available to CLT subscribers only—gives you the first notice when patterns in court decisions like this become apparent. It is an indispensable tool for in-house legal departments and outside counsel defense firms. You can subscribe here.

Several months ago, New York City’s Department of Consumer Affairs (DCA) adopted amendments related to Limited English Proficiency (LEP) consumers into its debt collection rules. The amendment was initially proposed on March 5, 2020, and a public hearing was held on April 10, 2020—just at the height of the COVID-19 pandemic scramble that led most businesses to send employees home to work. After receiving no comments, DCA moved ahead with its new rule. Only after the industry found its sea legs with the new world under COVID-19 did DCA agree to extend the grace period for enforcement of the new LEP rule to give it time to put forward an FAQ document for businesses. That extension comes to an end next week—on October 1—one big question remains unanswered.

That question is this: what should collection agencies do regarding the hyperlink to translations of commonly-used terms? According to the LEP rule, collection agencies must link to the DCA website (nyc.gov/dca), where a list of such terms and translations are supposed to be housed. However, to-date, DCA’s website still does not contain such a list. There’s currently no way to correctly comply with this regulation, and it does more harm than good to consumers.

Yesterday, insideARM reached out to DCA via email to get clarification about where on DCA’s website the commonly-used collection terms are located and the industry’s concerns about the looming grace period deadline. DCA responded that it expects to have a glossary of terms made available before the October 1 deadline and recommends monitoring the website for updates. Until then, we wait.

Editor’s Note: This article was originally published on the Maurice Wutscher blog and is republished here with permission.

The U.S. Court of Appeals for the Second Circuit recently held that a debt collector did not violate the federal Fair Debt Collection Practices Act (FDCPA) where it unintentionally sent a valid debt collection communication to a non-debtor.

However, the Second Circuit also held that the trial court erred in granting summary judgment for the debt collector based on the bona fide error defense relating to additional communications made to the non-debtor because a reasonable jury could find these errors were not bona fide and the debt collector did not maintain procedures reasonably adapted to avoid them.

A copy of the opinion in Wagner v. Chiari & Ilecki, LLP is available here.

A collection firm obtained a default judgment over a debtor named “William J. Wagner, Jr.” in 2006 for unpaid rent. Thereafter, the collection firm unsuccessfully attempted to serve various post-judgment subpoenas and summons on the debtor at various addresses over the next few years.

In February 2015, the collection firm obtained a new address for William J. Wagner in Hamburg, New York. However, the William J. Wagner who resided at the Hamburg address was not the debtor and did not know the debtor.

On Feb. 9, 2015, the collection firm sent a debt collection notice to Wagner at the Hamburg address. Upon receipt, on Feb. 12, 2015, Wagner called the collection firm to notify it that he was not the debtor, did not use the suffix Jr., and had a different Social Security number.

A day earlier, the collection firm sent a subpoena and restraining notice by certified mail addressed to the debtor to the Hamburg address. Wagner, knowing that he was not the debtor, did not retrieve the letter.

On March 19, 2015, after receiving notifications from the postal service that it was holding certified mail sent to “William J. Wagner, Jr.,” Wagner again called the collection firm to advise that he was not the debtor.

With the prior subpoena unclaimed, the collection firm sent a special process server to serve the debtor at the Hamburg address with specific instructions to “be sure to serve the correct William J. Wagner” because the collection firm “believe[d] there is a William J. Wagner, Sr. and William J. Wagner, Jr. living at the same address.” This instruction was based off a LexisNexis search that indicated that a Senior and Junior William Wagner lived at the Hamburg address.

The process server served Wagner who again called the collection firm to reiterate that he was not the debtor and explain that no person using the suffix Jr. resided at the Hamburg address.

On July 15, 2015, Wagner brought suit against the collection firm, alleging the collection firm’s communications violated various provisions of the FDCPA. After discovery, both parties moved for summary judgment.

The trial court granted the collection firm’s motion for summary judgment on claims relating to the original notice, reasoning that the collection firm had legal authority to pursue the collection of the debt in the precise amount owed, but merely attempted to collect the debt from the wrong person.

The trial court also held that the collection firm’s conduct was not “unfair or unconscionable” reasoning that Wagner had not actually attended a debtor’s examination, and the collection firm adjourned the debtor’s examination upon Wagner’s attorney’s request.

In addition, the trial court held that the collection firm did violate portions of the FDCPA by serving Wagner with the subpoena after being informed he was not the debtor. However, the court concluded that the FDCPA’s bona fide error defense shielded the collection firm from liability and thus entered judgment on its behalf. This appeal followed.

The Second Circuit examined the plaintiff’s claim that the collection firm violated the provision of the FDCPA that makes it unlawful for a debt collector to “use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e.

On appeal, the plaintiff argued that the trial court erred in granting summary judgment because (1) under New York law the collection firm lacked the right to serve a restraining notice on him without first having “reason to believe” that he was the debtor; and (2) New York case law held that a subpoena duces tecum could not “be used as a fishing expedition for the purpose of discovery.”

The Second Circuit rejected the plaintiff’s arguments noting that he misconstrued both the statute and case law cited.  The Second Circuit also held the trial court did not err as the collection firm sought to collect on a valid judgment against the debtor by explicitly instructing the process server to serve the subpoena on “Wagner, Jr.”, not “Wagner, Sr.”

The Appellate Court also agreed with the trial court that the collection firm did not violate section 1692f of the FDCPA which provides a debt collector “may not use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f.

Here, the Second Circuit noted, the plaintiff was never forced to attend a debtor’s examination or to respond to the subpoena, and the collection firm ultimately agreed to hold it in abeyance.

Accordingly, the collections firm’s conduct did not constitute “unfair or unconscionable means” of debt collection for purposes of section 1692f, and the collection firm was entitled to summary judgment on this claim.

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Next, the Appellate Court examined the application of the bona fide error defense under the FDCPA which provides a “debt collector asserting the bona fide error defense must show by a preponderance of the evidence that its violation of the act: (1) was not intentional; (2) was a bona fide error; and (3) occurred despite the maintenance of procedures reasonably adapted to avoid any such error.” Edwards v. Niagara Credit Sols., Inc., 584 F.3d 1350, 1352-53 (11th Cir. 2009).

The Second Circuit disagreed with the trial court’s ruling that the collection firm was entitled to summary judgment pursuant to the bona fide error defense, because a reasonable jury could find that the collection firm’s error was not bona fide and that it did not maintain procedures reasonably adapted to avoid its error.

In making this holding, the Appellate Court relied on the fact that the plaintiff twice informed the collection firm that he was not the debtor before receiving the subpoena. In addition, the collection firm conceded it had no written policies for situations when it is uncertain where a debtor resides based on conflicting information.

In sum, the Second Circuit concluded that a reasonable jury could find that the collection firm did not make a “bona fide error” within the meaning of the FDCPA, and accordingly held that the trial court erred in granting summary judgment to the collection firm.

Accordingly, the Appellate Court affirmed in part and vacated in part, and remanded the judgment of the trial court for further proceedings consistent with its opinion.

According to a Centers for Medicare & Medicaid Services report, in 2018 Americans’ medical expenses totaled $3.6 trillion. And that was without a pandemic that has been difficult to tame, if not wipe out completely.

Between February and May of 2020, 20 million Americans lost their jobs due to Covid-related shut-downs, leaving about 5.4 million Americans uninsured, according to a report by Families USA.

What this means is: a lot of medical counts entering the collections cycle.

HFMA and ACA have jointly published a 28-page report, updating and extending guidance to agencies on how best to treat medical debt accounts in this truly extraordinary time.

The report covers a framework for best practices, including:

• The Patient Friendly Billing Element
• The Communications Element
• The Price Transparency Element
• Attitude and Culture
• Education Tools
• Supportive Policies

Collections isn’t necessarily the easiest relationship to have with a consumer; human nature makes us guilty for not being able to fulfill a promise — fiduciary or otherwise. But we are now in absolutely uncharted territory, where more people than ever are finding themselves un- or under-employed, with no insurance, and no income to cover all the expenses they are now covering. (With many working from home, utility bills are higher, food budgets are different, and sometimes there’s still no toilet paper.)

Any effort that empowers consumers without alienating them is good work; and this HFMA/ACA report goes a long way to provide guidance on how to ensure dignity while working through this unfortunate and challenging time.

Editor’s note: This podcast episode is provided through an exclusive industry partnership between insideARM and Clark Hill, PLC. Podcast host Joann Needleman, a leading financial services attorney and member of the iA Legal Advisory Board, provides bite-sized hot topics in the consumer finance space. ClarkHIll content—and all insideARM articles—are protected by copyright. All rights are reserved. 

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Show Notes

ARM Industry titan, Mike Ginsberg, joins the next episode of Credit Eco To Go for a can’t miss discussion on the economic forecast for the debt collections industry. The industry is currently attracting a lot of attention especially in the secondary market, but current sustainability is being challenged. Agents are now the new “frontline” workers for financial services and consumers are engaging ARM companies like never before.

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Mike tells us what the industry will need to do in order to survive in this growing economic uncertainty. DISCLAIMER – No information contained in this Podcast or on this Website shall constitute financial, investment, legal and/or other professional advice and that no professional relationship of any kind is created between you and podcast host, the guests or Clark Hill PLC. You are urged to speak with your financial, investment, or legal advisors before making any investment or legal decisions.

Funk Game Loop by Kevin MacLeodLink: https://incompetech.filmmusic.io/song/3787-funk-game-loopLicense: http://creativecommons.org/licenses/by/4.0/

On the one hand, if you’re mostly a headline reader, then you know what you need to know and it says it all there up top. Nevada will allow work-from-home through 31 December 2020.

The memo, addressed to Collection Agency Licensees and Registrants from Sandy O’Laughlin, Commissioner, was published on 18 September 2020 and can be found here.

What the headline readers will miss, though, is this: “The NFID may not extend this guidance past December; therefore, it is imperative that the collection agency begin making plans to ensure it can both comply with Nevada law and the laws of the other jurisdictions it does business in.”

So, collection agencies licensed in Nevada have 101 days (104 if you count from when the memo was published) to make some tough decisions about what to do with agency staff starting 1 January 2021. Do you bring everyone back? Do you bring collectors back in alternating shifts? Do you have to reduce your workforce because some employees may not feel ready or safe enough to come back to an office?

insideARM’s Research Assistant program has weekly Covid Support Group calls where we talk through issues just like this one. If you’re not a member, this might be a good reason to join us.

Last week, the Consumer Financial Protection Bureau (CFPB) announced the newest members of its advisory boards, including the Consumer Advisory Board (CAB). Notably, the CAB is yet again devoid of representation from the debt collection industry, which has been a pattern ever since 2018, when the CFPB’s Former Acting Director Mick Mulvaney disbanded the advisory board on which Ohad Samet, CEO of TrueAccord, sat.

The newly announced CAB members include:

• Chair of the CAB – Eric Kaplan, Director – Housing Finance Program, Milken Institute (Washington, DC)
• Joaquin Altoro, CEO, Wisconsin Housing & Economic Development Authority (Madison, WI)
• Nikitra Bailey, EVP, Center for Responsible Lending (Durham, NC)
• Lorray Brown, Attorney/Consumer Law Attorney, Co-Director, Michigan Poverty Law Program (Ypsilanti, MI)
• Nadine Cohen, Managing Attorney, Greater Boston Legal Services (Boston, MA)
• David Ehrich, Executive Director, AIR – Alliance for Innovation Regulation (Washington, DC)
• Mae Watson Grote, Founder and CEO, The Financial Clinic (Brooklyn, NY)
• Tim Lampkin, CEO, Higher Purpose Co. (Clarksdale, MS)
• Leigh Phillips, President and CEO, EARN DBA SaverLife (San Francisco, CA)
• Jean Setzfand, Senior Vice President, AARP (Washington, DC)
• Rebecca Steele, President/CEO, National Foundation for Credit Counseling (Washington, DC)
• Tim Welsh, Vice Chairman Consumer and Business Banking, U.S. Bank (Minneapolis, MN)

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Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

It is not very often that a Court of Appeals reaches back to Supreme Court authority from the 1800s to nix a commonly-accepted practice. And when it does happen, it is critical to understand why it occurred. Let me help.

Background on Incentive Awards

The Eric J. Troutman Dictionary of Legal Terms defines “incentive awards” thusly: (n) a sizable but relatively modest payment made to class representatives as part of a class settlement, ostensibly to compensate for the pain and suffering inflicted upon the representative by aggressive defense counsel. Cf. necessary evil.

In truth, incentive awards are approved as part of almost every class settlement. The theory is that class actions, by their very nature, are designed to address teeny tiny harms that would not otherwise permit individual litigation. Six bucks here. Twelve cents there. Stuff like that. If lawyers can be incented to take these cases on a classwide basis on the hope of recovering a third of that twelve cents or six bucks paid to a very large number of class members, the plaintiff bringing the case risks much wasted time and expense in the hope of recovering…. well, just six bucks or twelve cents or, whatever.

So incentive awards were baked up at some point in the distant past for the purpose of assuring that people were actually afforded a reason to pursue class litigation. Without the award—in theory, at least—human beings would not waste their time bringing class litigation. And while that may seem like an excellent outcome, in truth it would enable a good deal of micro-injuries to be permitted in our society that could add up to a great deal of unchecked misery over time and at volume.

Now please don’t misread what has been said so far as a suggestion that I—a defense lawyer—favor the class action vehicle. I have a relative detest for it. Especially when deployed in the context of the TCPA, a statute that seems to serve no purpose but to punish legitimate companies. But under the American system—where successful litigants do not recover their attorney’s fees—it is the only way that small crimes and petty offenses can be punished in the civil arena. (I far prefer the European method of requiring the parties to pay their opponent’s attorney’s fees in the event of unsuccessful lawsuits of any kind.)

Johnson v. NPAS Solutions Changes it All

It is difficult to imagine a world in which the class action vehicle can survive without incentive payments to successful class representatives. And that, love it or hate it, appears to be precisely the point of Johnson v. NPAS Solutions, No. 18-12344, 2020 U.S. App. LEXIS 29682 (11^th Cir.  Sept. 17, 2020)—to remove any incentive for regular human beings to file class action lawsuits, leaving the practice in the hands of zealots or, perhaps with an eye toward eradicating Rule 23 altogether.

I have wasted enough keystrokes explaining the backdrop to Johnson, namely that Plaintiff’s lawyers in Florida got ultra-greedy and flooded the federal district courthouses with piles of TCPA class actions until the dockets were crushed and the regular and important work of the federal judiciary could no longer get done. A backlash should have been anticipated. Consumer lawyers in Florida were not just pigging out, they were hogging out, and that always tends to lead to the slaughter.

And so the slaughter came but in increments. The standing rules tightened, then the TCPA’s ATDS definition narrowed, and the ability of consumer’s to revoke consent evaporated. All well and good. But the heart of the class action beast still pulsed with a steady drumbeat of new TCPA filings.

Until Johnson. The case that ripped the heart clear out of the beast altogether. In Johnson, the Eleventh Circuit weighed the objections of a single person—the lone objector to a settlement that included over 19,000 class members and saw over 9,600 people participate in submitting a claim and expecting a recovery of $79.00. For receiving a phone call. 

The objector—a woman by the last name Dickenson—was not objecting that the recovery was too high, of course, but rather that it was too low. Class members deserved more—a common refrain from objectors, whose counsel commonly sell out the class to recover “more” for themselves. This objection went no further with the Eleventh Circuit than it does elsewhere.

Eleventh Circuit Decision

But Dickenson raised other objections as well. More unusual ones that the Eleventh Circuit found meritorious.

First, she argued that Rule 23 absolutely required that the fee petition be filed before the timeframe for class member objections to be filed. I have to admit I hadn’t picked up on that nuance of the rules, but it appears she is absolutely right. And the Eleventh Circuit panel agreed:

We hold that Rule 23(h)’s plain language requires a district court to sequence filings such that class counsel file and serve their attorneys’-fee motion before any objection pertaining to fees is due.

An important point of order and one that class action litigators the nation over should appreciate being clarified. And that rule makes sense, of course. All the notice in the world doesn’t do much good if class members are foreclosed from objecting to the actual fee petition when it is filed. Superb.

Now the big one. Dickenson argued that a $6,000 “incentive payment” to Johnson as the class representative violates doctrine from two U.S. Supreme Court cases from the 1800’s: Trustees v. Greenough, 105 U.S. 527 (1882), and Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885).

As a rule, when a party contends that a common practice violates the requirements of some dusty decisions from the 1800s, they are wrong. Usually dreadfully. But every rule has an exception, and the Johnson case affords it.

Carefully studying the old cases, the Johnson panel concludes that the Supreme Court did, in fact and long ago, determine that incentive awards are impermissible. The Greenough matter—in which the Supreme Court actually did approve the payment of numerous sums to the class representative to assure that other recovering class members were not unjustly enriched for his hard work—was read narrowly by the Johnson court to forbid payments of “personal” and “private expenses.” (What Greenough actually says is “it would present too great a temptation to parties to intermeddle in the management of valuable property or funds in which they have only the interests of creditors, and that, perhaps, only to a small amount, if they could calculate upon the allowance of a salary for their time and having all their private expenses paid.”,” which seems a bit different to me.) As to Pettis, the Johnson court determines the Supreme Court “confirms” the rule of Greenough that “’the expenses incurred in carrying on the suit and reclaiming the property subject to the trust” is proper, his “claim to be compensated, out of the fund or property recovered, for his personal services and private expenses’ is ‘unsupported by reason or authority.’”

From these cases—decided some 50 years prior to the passage of the original iteration of Rule 23 that empowered the modern class action vehicle—the Johnson panel derives this rule:

A plaintiff suing on behalf of a class can be reimbursed for attorneys’ fees and expenses incurred in carrying on the litigation, but he cannot be paid a salary or be reimbursed for his personal expenses.

A fair articulation, assuming Rule 23 did not alter matters. But an incentive award has never been structured as payment of salary—I have never seen a class representative argue that they make $X an hour and invested Y hours to defending the suit and so should recover $XY as an incentive award. Yet the Johnson panel had little trouble drawing a correlation:

It seems to us that the modern-day incentive award for a class representative is roughly analogous to a salary—in Greenough’s terms, payment for “personal services.’

Fair enough. But the Court goes much further. Pay careful attention here because this is where the Johnson panel makes it clear what the end game is:

If anything, we think that modern-day incentive awards present even more pronounced risks than the salary and expense reimbursements disapproved in Greenough. Incentive awards are intended not only to compensate class representatives for their time (i.e., as a salary), but also to promote litigation by providing a prize to be won (i.e., as a bounty).

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There it is. The Johnson panel just invalidated incentive awards because they tend to “promote litigation.” No incentive awards. Less litigation. That is the direct, necessary, and intended consequence of the Johnson opinion—don’t let anyone tell you different.

The Johnson panel wraps its analysis–as has become somewhat common in TCPA cases narrowly reading or applying the statute of late—imploring Congress or a higher court to fix the result if they so deem but bragging of the handcuffs that force the instant result:

Although it’s true that such awards are commonplace in modern class-action litigation, that doesn’t make them lawful, and it doesn’t free us to ignore Supreme Court precedent forbidding them. If the Supreme Court wants to overrule Greenough and Pettus, that’s its prerogative. Likewise, if either the Rules Committee or Congress doesn’t like the result we’ve reached, they are free to amend Rule 23 or to provide for incentive awards by statute. But as matters stand now, we find ourselves constrained to reverse the district court’s approval of Johnson’s $6,000 award.

The end. No more incentive awards. In any amount. Period.

In addition to itself stamping out incentive awards, the Johnson panel advised that district courts may not “rubber stamp” approval to class action settlements. Summary approvals or settlements and fee awards are forbidden. As are summary rulings on objections to such settlements. Reasoned analysis is required in all corners and at all times in evaluating such settlements.

It will be absolutely fascinating to see whether the rule of Johnson eradicating incentive awards-which is broad enough to apply to all consumer class litigation and not just TCPA cases—will be adopted in other courts. It will be, perhaps, even more interesting to see how Dickenson, and her counsel, are compensated for bringing so much improvement to the class settlement at issue. Perhaps the day is not so far away that objecting to class action settlements is more profitable work than filing class actions in the first place.

At bottom I can’t say Johnson is wrongly decided, but it is certainly deliberately decided and in a mold-breaking sort of way. This was a clear message folks—the Eleventh Circuit does not want your consumer class action. Bring it somewhere else. You no longer have any incentive to file it here.

We’ll keep an eye out for the en banc petition papers.