Miami Attorneys Score Nearly $9M in Attorney Fees, Advance ‘Novel Legal Theory’
DAILY BUSINESS REVIEW October 31, 2022 at 03:48 PM
Yaniv Adar, attorney at Mark Migdal & Hayden
Miami Attorneys Score Nearly $9M in Attorney Fees, Advance ‘Novel Legal Theory’ “The settlement that was made here was eye-popping,” said Yaniv Adar, a partner at Mark Migdal & Hayden and TCPA expert who was not involved in the underlying case.
Two Miami-based lawyers walked away from a federal court in Orlando with more than $9 million in attorney fees and costs for their clients after they successfully advanced a “novel legal theory” in class action litigation against legal counsel for an agent-owned nationwide real estate brokerage company.
Avi R. Kaufman and Stefan Coleman of Kaufman P.A. and the Law Offices of Stefan Coleman, respectively, were lead class counsel who reached a nearly $27 million settlement agreement with eXp Realty LLC over alleged violations of the constantly evolving Telephone Consumer Protection Act.
Avi R. Kaufman of Kaufman P.A. Courtesy photo
While Kaufman did not respond to a call or an email requesting comment, and Coleman declined to comment, Yaniv Adar, a partner at Mark Migdal & Hayden in Miami who is an expert in TCPA litigation, said federal judges are closely scrutinizing these TCPA cases.
Adar, who is not involved in the case, said the court-approved settlement was “eye-popping.”
But it was the third cause of action, a reference to an internal “Do Not Call” list claim, that caught Adar’s eye because “there are technical arguments that are being advanced by the plaintiffs bar that can create tremendous liability for the unintentional violation.”
“There’s this novel legal theory that’s going through the TCPA world, which is that it’s not so much that agents called someone in violation of the DNC, but it’s that you don’t maintain internal policies to be able to prevent those folks from being called,” Adar added.
Daniel L. Delnero, principal at Squire Patton Boggs in Atlanta, who was among the attorneys that represented eXp in the case, did not respond to an email or call requesting comment.
Defendant eXp trained its agents and those from various lead generators through a cloud platform in which it obtained phone numbers associated with expired property listings, according to court documents. Agents cold-called those numbers to retain clients that still aimed to sell their property, according to the amended complaint. EXp expected agents to use automatic telephone dialing systems that debt collectors commonly use, documents claimed.
But under TCPA, a caller must have the prior express written consent to make a solicitation call using an autodialer, as well as a prerecorded voice message, or to otherwise make a solicitation call to a number registered on the Do Not Call list. Yet the defendant and its more than 10,000 agents failed to obtain prior written consent, according to the amended complaint.
The class included all regular users or subscribers to numbers assigned to wireless carriers to which a call was attempted by a real estate agent affiliated with the defendant, as well as additional specifics, according to court documents.
And in the motion for attorney fees and costs, class counsel argued that when they filed the complaint, “no court had certified a class on a similar theory of realty brokerage vicarious liability or found the theory otherwise viable in any legal context.”
As the litigation progressed, however, that posed a problem and created doubt. The U.S. District Court in the Northern District of California “issued a first-of-its-kind decision rejecting the same vicarious liability theory and denying class certification against a national brokerage in a case that was filed the same month as this one,” according to class counsel.
But one of the most “severe threats to the viability” of class counsels’ claims was a potential change in the law during the pendency of the case when legal practitioners expected the U.S. Supreme Court to rule that the TCPA was unconstitutional and irreparable in Barr v. APPC.
U.S. District Judge Paul G. Byron, who sits in the Middle District of Florida, granted a stay pending the Barr decision that the Supreme Court entered in February 2020. However, the Supreme Court ruling, which did not invalidate the entire robocall restrictions and treated political speech equally with debt-collection speech, was favorable to class counsel.
Had the Supreme Court ruling not been favorable, class counsel predicted the decision would have “defeated all of plaintiffs’ claims after class certification and summary judgment had been briefed and trial preparation had commenced in earnest,” according to court documents.
Now, Byron awarded class counsel $8.97 million in attorney fees, and reimbursed nearly $106,300 in costs.
The amount is equal to one-third of the settlement’s monetary relief and 20% of its total economic value of nearly $44 million, according to court documents. As a result, the monetary relief of $90 per claim net of any award of attorney fees and expenses is approximately $60.
And Adar, the TCPA expert, explained that the ruling is another reason to warn clients to come to him on the defense side with these cases because they “are not simply something that’s going to go away for a small amount of money.”
Adar added: “You have to be prepared to significantly invest resources to defend these cases or be prepared to accept tremendous risk.”
