TCPA Settlements

November 2017


$9 Million For B2B RoboCalls

Abante Rooter and Plumbing v. Pivotal Payments
$9M preliminary settlement – Pivotal allegedly made autodialed, prerecorded message calls promoting its payment processing services to mobile phones assigned to Abante employees who responded to emergency service calls. Abante claimed it had never been a customer of Pivotal Payments, and never expressed interested in becoming a Pivotal customer. Highlights include:
• $9,000,000 non-reversionary settlement fund
• $29 for each class member (expected: range of $20 – $60 depending on number of claims)
• $25,000 for class representative (requested)
• $1,231,675 for class administration (expected)
• $2,302,914 for class counsel (requested – ~25% of settlement fund)
[N.D. CA; 3:16-cv-05486]
jbho: another reminder that the TCPA does cover B2B calls.

Worth noting that Pivotal argued in a motion to dismiss (Doc#27) that Abante could not assert a violation of privacy in support of standing because it was a corporation. The court found the intrusion on the occupation and capacity of Abante cells phones, as well as waste of employee time, were concrete injuries for the purposes of Article III standing. Thus, the court did not consider the invasion of (corporate) privacy arguments.

 

September 2017

$5.5 Million To End TCPA, Call Recording Suit

Kerr v. Zacks Investment Research
$5.5M preliminary settlement – Zacks allegedly made unsolicited, autodialed telemarketing calls to plaintiffs’ mobiles, and in some cases recorded calls without plaintiffs’ knowledge or consent. Calls were made in response to phone orders made by plaintiffs, to encourage them to make additional purchases – a purpose for which consent was never provided.

The consolidated action addresses three classes that will split the $5,480,000 non-reversionary settlement fund. Highlights include:

  • Zacks TCPA Class – $4,650,000
    • ~$17 for each class member (expected – ~266,000 class members)
  • North classes – $830,000
    • ~$42 for each Call Recording class member (expected – ~15,000 class members)
    • ~$13 for each TCPA class member (expected – ~13,000 class members)
  • $30,000 for class representatives (7 lead plaintiffs)
  • $1,440,000 for class counsel

[S.D. CA; 3:16-cv-01352]
jbho: a reminder that an inbound call does not necessarily constitute consent. The context under which the inbound call was received matters, and even then only provides prior express consent for related calls. Marketing requires Prior Express Written Consent.


$17.5 Million For Debt Collection Calls

Snyder v. Ocwen
$17.5M preliminary settlement – Ocwen allegedly made autodialed and prerecorded debt collection calls to plaintiffs’ mobiles. Plaintiff Snyder claimed he never provided his mobile number to Ocwen (on a credit application or otherwise), and believed the number was obtained through skip-tracing. Plaintiff Snyder claimed he was unable to request calls stop on inbound calls, and calls continued despite informing Ocwen via email to stop calling (as well as the fact he was disputing the debt). Plaintiff Mansanarez claimed debt collection calls continued despite her requests they cease (the complaint did not specify any initial consent on her part).

Highlights include:
• $17,500,000 non-reversionary settlement fund
• $55 – $90 for each class member (expected – 1.6 million class members)
• $25,000 for each class representative
• $5,833,333.33 for class counsel (requested – 1/3 of settlement fund)
Any unclaimed funds will be distributed evenly between the National Consumer Law Center and Public Justice Foundation.

In addition to the settlement, Ocwen has agreed to update its consent-gathering processes, as well as agreed to pay ‘enhanced damages’ for future violative calls:
• $1,000 for the first 10 illegal calls
• $1,250 for the next 11-50 calls
• $1,500 for any calls over 50
Plaintiffs will still be free to pursue the statutorily permitted $1,500 per call, but the above numbers represent guaranteed minimum payouts.
[N.D. Ill; 1:14-cv-08461]
jbho: a reminder button up those revocation and skip-tracing processes. And maybe stop calling on a disputed debt?


Restaurant Will Pay $7M To Settle TCPA Suit

Avio v. Alfoccino
$7M preliminary settlement – Alfoccino, through its agent, allegedly sent unsolicited marketing faxes. Highlights include:
• $6,987,500.00
• ~$600 for each class member (expected average – 13,975 faxes to 7,649 unique numbers)
• $15,000 for class representative (requested)
• $2,384,166.67 for class counsel (requested – 1/3 of settlement fund)
Unclaimed funds revert to Alfoccino’s Insurers
[E.D. MI; 1:10-cv-10221]
jbho: this one has an interesting history. The district court initially granted Alfoccino’s MSJ, ruling Alfoccino wasn’t the sender of faxes (improperly) sent by it vendor (B2B solutions). The appellate court reversed finding the language of the TCPA was clear that the “sender” was “the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement,” and the FCC rules clarified “the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with (FCC rules).” Afterwards, the district court rejected Alfoccino’s argument there was no administratively feasible way to determine class members, finding it was feasible to determine the class members simply by reviewing a list of the numbers to which the faxes were sent.

Also worth noting: the now defunct B2B Solutions has repeatedly appeared in Junk Fax litigation, leaving a large number of clients holding the bag. For example, In City Select Auto Sales v. David Randall Associates (D. N.J.; 1:11-cv-02658) a $1,775 agreement with B2B lead to a $22M TCPA settlement. In American Copper & Brass v. Lake City Industrial Products (W.D. MI; 1:09-cv-01162), Lake City paid B2B $92 dollars to send some 10,000 unsolicited faxes, and ended up being on the hook for a $5.2M TCPA judgement – ultimately leading to the bankruptcy of Lake City Financial. So vet your vendors not only on performance matters, but on liquidity as well.


$4.8 Million For Fax-Blasting

Family Medicine v. Impax Labs
$4.8M preliminary settlement – Imapx allegedly sent unsolicited faxes advertising an Epi-Pen alternative, faxes that did not contain the statutorily required opt-out notice. Highlights include:
• $4,815,700 non-reversionary settlement fund
• ~$65 for each class member (estimated 48,157 potential class members)
• $20,000 for class representative (requested)
• $75,000 for settlement administration
• $1,605,233.33 (requested – 1/3 of settlement fund)
Unclaimed funds revert to a cy pres distribution
[S.D. AL; 1:17-cv-00053]
jbho: still faxin’, after all these years…

$3.2 Million For Debt Collection Calls To Wrong (Skip-Traced) Numbers

In re Collecto TCPA Litigation
$3.2M settlement approved – Collecto allegedly made autodialed debt collection calls to plaintiffs’ mobiles for debts owed by others. Highlights include:
• $3,200,000 non-reversionary settlement fund
• $200 for each class member (expected – $40 per call)
• $7,500 for each class representative
• $1,300,000 for class counsel
[D. Mass; 1:14-md-02513]
jbho: noteworthy here, is that the court denied a motion for summary judgement (Doc #36), finding the Noble and GC Dialers systems used were ATDSs.

August 2017


$8 Million For Spam Texts

Gottlieb v. Citgo
Preliminary $8M settlement – Citgo allegedly sent unsolicited (ATDS) texts encouraging plaintiff to download the “Club Citgo” app and be entered into a sweepstakes. Plaintiff provided his number to Citgo as part of a previous text-to-win sweepstakes. However, plaintiff claimed he did not provide his number for the later promotional texts that were the subject of the complaint (a number on the national Do Not Call list). Highlights include:
• $8,000,000 non-reversionary settlement fund
• ~$50 for each class member (expected – 93,000 members)
• $5,000 for class representative (proposed)
• $300,000 for settlement administration
• $2,666,666.67 for class counsel (proposed – 33% of settlement fund)
[S.D. FL; 9:16-cv-81911]
jbho: a reminder to consider the scope and duration of consent. Here it appears that Citgo’s vendors may have inadvertently included old phone number lists in new campaigns. Another case that stresses the importance of good data hygiene.


$1.3 Million In Gift Cards For Mishandling Consent Records

Etzel v. Hooters
Preliminary settlement – Hooters allegedly sent (ATDS) marketing texts to opted-out individuals who were opted back in when Hooters moved to a new text provider.
Highlights include:
• $1,299,410 in Hooters Gift Cards
o $50 gift card for each class member who explicitly opted-out by replying STOP (~7,351 members)
o $20 gift card for each class member who did not reply to Hooters Oct2013 opt-in request (attempt to obtain Prior Express Written Consent in advance of the new Robocall Rules being in-force) (~46,593 members)
• $10,000 for class representative (proposed)
• Up to $125,740 for settlement administration
• $444,000 for class counsel (proposed)
[N.D. GA; 1:15-cv-01055]
jbho: following up on this one – a reminder of the importance of good data hygiene, especially if you plan to switch providers.

$20 Million For Job Soliciting Texts

Vergara v. Uber
$20M preliminary settlement
Uber allegedly sent unsolicited (ATDS) texts to plaintiffs’ mobiles (seven named plaintiffs), soliciting plaintiffs to work as Uber drivers. Some plaintiffs had begun, but not completed the application process, others had no prior relationship with Uber, but received the solicitations through an apparent Refer-a-Friend system. Texts allegedly continued despite STOP replies being sent.

Highlights include:
• $20,000,000 non-reversionary settlement fund
• ~$500 for each (expected – depending on number of claims filed)
• $10,000 for each class representative (proposed)
• $6,660,000.00 for class counsel (proposed – 33% of settlement fund)
[N.D. Ill.; 1:15-cv-06942]
jbho: A reminder that employment related messages are covered under the TCPA.

Although, one could say that plaintiffs were gaming the opt-out outs, since the STOP replies were padded with additional content.


But by now, everyone should be able to process more creative STOP replies.


$28 Million For Marketing Robocalls

In re Monitronics TCPA Litigation
Preliminary $28M settlement – Monitronics, through its agents, allegedly made unsolicited autodialed, prerecorded messages calls marketing home security alarm products and services to plaintiffs’ mobiles and numbers on the Nations Do Not Call list. Plaintiff alleged the calls were made with the apparent authority, actual authority, and ratification of the alarm manufacturers and servicers (e.g., Monitronics). Some thirty cases were consolidated in this action.

Highlights include:
• $28,000,000 non-reversionary settlement fund
• $15-$25 for each (estimated – depending on number of claims filed)
• $113,012 for class representatives (proposed)
— $50,000 to lead plaintiffs Mey & Charvet
— $6,012 to plaintiff Bennet
— $3,500 to plaintiffs Dolemba & Hodgins
• $4,770,889 for class administration (expected)
• $9,333,333.33 (proposed – 33% of settlement fund)
[N.D. W.V.; 1:13-md-02493]
jbho: a reminder of the importance of performing due diligence on your vendors, and establishing clearly defined roles so each parties obligations and responsibilities are clearly defined.

After six years of litigation a settlement was finally reached. Many plaintiffs accepted offers of judgement, but there were a few holdouts. You may recognize some of the plaintiff’s names from other TCPA litigation. It appears the $28,000,000 was agreed since this was the cap on Monitronics’s insurance policy. At least one agent – Alliance – has filed for bankruptcy in the wake of this action.

Note also that claims against Honeywell were dropped when the court found that even where manufacturers allowed callers to say they were their authorized representatives and had provided telemarketing scripts, this did not mean the manufacturers had sufficient control to constitute an agency relationship. Similarly, ratification could not be shown simply because the manufactures may have benefitted from callers’ violations (plaintiffs produced no evidence manufacturers turned a blind eye), as manufacturers could not ratify callers’ behavior absent an agency relationship. (Doc# 913)

July 2017


$19 Million For Wrong Number Calls

Johnson v. Navient
$19.74M settlement – Navient allegedly made autodialed, prerecorded message calls to plaintiff’s mobile without consent. Calls allegedly continued despite informing Navient it had reached a wrong number. Highlights include:
• Non-revisionary $19,744,650.00 settlement fund
• $515 for each class member (24,834 members)
• $25,000 for lead plaintiff
• $5,000 for supporting plainitffs
• $6,581,550 for class counsel (requested – one third of settlement fund)
[S.D. IN; 1:15-cv-00716]
jbho: another reminder of the importance of good data hygiene.


$3.7 Million For Unsolicited Telemarketing

Mey v. Patriot Payment Group
Preliminary $3.7M settlement – Patriot, on behalf of its agents, made unsolicited autodialed telemarking calls to plaintiff’s mobile, a number on the National Do Not Call registry. Highlights include:
• $3,700,000 settlement fund
• $8 for each class member (265,315 members)
• $20,000 for class representative
• $397,872.15 for class administration
• $1,233,333.33 For class counsel
[N.D. W.V.; 5:15-cv-00027]
jbho: a reminder that the TCPA covers DNC violations as well (47 USC §227(c)). Plaintiff Mey appears to be particularly skilled at bringing these types of double-dip actions.

June 2017


$1 Million For Spam Texts Sent To People Who Returned Merchandise

Meyer v. Bebe
Bebe allegedly sent an unsolicited marketing text to plaintiff, to a number collected during a merchandise return. Plaintiff stated she provided her number to complete an in-store return/purchase transaction, and Bebe never advised her it would send promotional texts. The text read:

From: 423-23
bebe: Get on the list!
Reply YES to confirm opt-in. 10% OFF regprice in-store/online. Restrictions apply. 2msg/mo, w/latest offers.
Msg&data rates may apply.

The court previously found the text was plausibly an advertisement sent for marketing purposes, and such calls – even with a dual purpose – required Prior Express Written Consent. The court had also found that since the texts contained a ‘form message’ sent ‘en masse,’ allegations of an ATDS were plausible.

Highlights include:
• up to $1,058,180 in settlement funds
• $20 for each class member (38,609 members)
• $3,000 for class representatives (requested)
• $283,000 for class counsel (requested – ~27% of settlement)
[N.D. CA; 4:14-cv-00267]
jbho: The text appears to be the part of a double opt-in. However, the inclusion of the promotional material appears to have tipped the balance, and made the message more of a marketing message. Couple points to consider:
• consent is contextual – providing a number for one purpose (a merchandise return) does not equate to consent for all purposes
• don’t try to disguise a marketing message as ‘informational’
• a message asking someone to sign up to marketing is ‘marketing’ (and requires Prior Express Written Consent)
• you can’t send a text asking for consent

Provision of a number should be consent enough to send a double opt-in confirmation, but the message should have that singular purpose – to confirm the opt-in.


$8.5 Million For Unsolicited Texts

Farnham v. Caribou
$8.5M preliminary settlement – Caribou allegedly sent (ATDS) texts to plaintiff’s mobile without consent. Plaintiff claimed she never provided her number to Caribou. Highlights include:
• $8,500,000 non-reversionary settlement fund
• $200 for each class member (expected)
• $10,000 for class representative (requested)
• $351,756.88 for class administration (expected)
• $2,975,000 for class counsel (requested – 35% of settlement fund)
[W.D. WA; 3:16-cv-00295]
jbho: same old story, no promotional texting until you get Prior Express Written Consent

May 2017


$11 Million For Robocalls To Numbers On The National Do Not Call List

Mey v. Frontier
$11M preliminary settlement motion – Frontier allegedly made unsolicited autodialed marketing calls to plaintiff’s mobile, a number on the National Do Not Call list. Highlights include:
• $11,000,000 non-reversionary settlement fund
• at least $90 for each class member (adjusted upward for multiple calls)
• $20,000 for class representative
• $3,742,817.54 (1/3 of settlement fund)
[D. Conn; 3:13-cv-01191]
jbho: Consent! Consent! Consent!

$6.5M For Robocalls To Landlines

Heidarpour v. Central Payment
$6.5M settlement approved – Central allegedly made unsolicited prerecorded telemarketing calls to plaintiff’s residential line.
• $6,500,000 settlement fund
• $100 – $150 for each class member
• $25,000 for class representative
• $2,210,566.41 (one third of settlement fund)
[M.D. GA; 4:15-cv-00139]
jbho: remember, use of a prerecorded message alone, is sufficient to risk TCPA liability.


$4.25 Million For Telemarketing Calls To Numbers On The National DNC List

Youngman v. A&B Insurance
$4.25M settlement – A&B allegedly made autodialed and prerecorded message calls to plaintiff’s mobile, a number on the national Do Not Call list. Plaintiff claimed he was not a Customer of A&B, and never provided his number to A&B. Highlights include:
• $4,250,000 settlement fund
• $85 for each class member
• $10,000 for each class representative
• $1,459,588.86 for class counsel (1/3 of settlement fund)
[M.D. FL; 6:16-cv-01478]
jbho: yet another reminder that plaintiffs can double-dip and sue for autodialed (§227(b)) and manual dialed (§227(c)) calls.

$1.1 Million For Telemarketing Calls

Abramson v. Alpha Gas
Preliminary approval of $1.1 million settlement – Alpha allegedly made unsolicited autodialed telemarketing calls to plaintiff’s mobile. The calls allegedly offered a refund, but the refund was only available if the called party signed up for the Alpha service. Highlights include:
• $1,100,000 non-reversionary settlement fund
• ~$10 for each class member
• $7,500 for class representative
• $386,103.67 for class counsel (1/3 of settlement fund)
[S.D. N.Y.; 7:15-cv-05299]
jbho: Consent! Consent! Consent!

April 2017

$25 Million Deal Over Health Service Faxes

Dakota Medical v. RehabCare
$25M preliminary settlement approval – RehabCare allegedly sent some 2.4 million unsolicited faxes to some 12,000 numbers purchased from a list broker. The faxes were allegedly sent absent an existing business relationship and with opt-out notices that did not comply with statutory requirements. Highlights include:
• $25,000,000 non-reversionary settlement fund
• $1,950 for each class member
• $15,000 for class representative
• $8,333,333 for class counsel (1/3 of settlement fund)
[E.D. CA; 1:14-CV-02081]
jbho: I was almost ready to stop writing up fax cases, and then bam! Another massive settlement. Shocking.

Lesson here – list brokers and the TCPA don’t mix?

$17 Million For Spam Faxes

Econo-Med v. Roche
$17M settlement approved – Roche allegedly sent unsolicited faxes with opt-out notices that did not comply with statutory requirements. Highlights include:
• $17,000,000 settlement fund
• up to $500 for each class member
• $5,000 for class representative
• $5,666,666 for class counsel (1/3 of settlement fund)
[S.D. IN; 1:16-cv-00789]
jbho: Again a fax case, but big dollar headlines make it noteworthy. Faxes here were sent in 2016.

$3.3 Million Deal Proposed In Junk Fax Suit

Stone v. LKQ
$3.3 preliminary settlement – LKQ allegedly sent unsolicited faxes with opt-out notices that did not comply with statutory requirements. Highlights include:
• $3,266,500 non-reversionary settlement fund
• $330 for each class member (6,525 members)
• $7,500 for class representative (requested)
• $1,088,833.33 for class counsel (requested – 1/3 of settlement fund)
[N.D. Ill; 1:16-cv-07648]
jbho: faxes here were sent in 2015, but I still don’t see the number of fax cases slowing down.

$3 Million Fax Blast Settlement

Craftwood Lumber v. Senco
$3M settlement – Senco allegedly sent some 28,000 unsolicited faxes to 3,765 different fax numbers, with opt-out notices that did not comply with statutory requirements. Highlights include:
• $3,000,000 non-reversionary settlement fund
• $800 for each class member (expected)
• $35,430 for class representative (requested)
• $983,333 for class counsel (requested – 1/3 of settlement fund)
[N.D. Ill; 1:14-cv-06866]
jbho: Consent! Consent! Consent! And don’t forget the procedural requirements.

March 2017

$19.5 Million Settlement For Unsolicited Faxes

Technology Training Associates v. Buccaneers
$19.5M preliminary settlement approved – The Bucs, through its agents, allegedly sent some 343,000 unsolicited faxes to more than 131,000 unique fax numbers, without recipients ‘prior express invitation or permission.’ Highlights include:
• $19,500,000 settlement fund
• $350 – $565 for each class member, depending in number of faxes received
• $20,000 for lead plaintiff
• $3,000 for supporting plaintiff
• $4,875,000 (25% of settlement fund)
Any unclaimed funds will revert to the Buccaneers.
[M.D. FL; 8:16-cv-01622]
jbho: Consent! Consent! Consent!

And another reminder the TCPA applies to B2B marketing.

 

$3 Million For Spam Texts; Counsel’s Award Shaved

Brown (Newby) v. Rita’s Water Ice
$3M Settlement – Rita’s Italian Ice allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile, despite plaintiff’s multiple STOP replies, and despite plaintiff’s email requests for texts to cease. Highlights include:
• $3,000,000 settlement fund
• $56.81 for each class member who received at least one unsolicited text (28,137 claimants)
• $625.01 for each class member who continued to receive texts after a STOP reply (386 claimants)
• $5,000 for each class representative (2)
• $691,073.97 for class counsel (23% of settlement fund)
Due to a higher than expected response rate, and inefficient, duplicative, or irrelevant work done by counsel, class counsel’s award was reduced from the requested $ 1 million.

Uncashed checks will revert to Rita’s.
[E.D. Penn; 2:15-cv-03509]
jbho: honor opt-outs!

February 2017

$16 Million Fax Spam Settlement

ARcare v. Cynosure
$16M preliminary settlement – Cynosure allegedly sent unsolicited faxes that with opt-out notices that did not comply with statutory requirements. Highlights include:
• $16,000,000 settlement fund
• $200 for each class member
• $15,000 for class representative
• $4,000,000 for class counsel (25% of settlement fund)
[D. Mass.: 1:16-cv-11547]
jbho: it always surprises me how much faxing is still going on these days.

Also, if you need a refresher on fax opt-out notice composition, here’s a link: https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1572A1.pdf

Trout Fishing In Georgia Yields Almost $18 Million

Two Wells Fargo Settlements

Luster v. Wells Fargo
$15.7M preliminary settlement – Wells Fargo allegedly made autodialed debt collection calls to plaintiff’s mobile for other people’s debts. Highlights include:
• $15,740,473.20 non-reversionary settlement fund
• $4.65 for each class member
• $20,000 for class representative (requested)
• $4,722,141.96 for class counsel (30% of settlement fund, requested)
[N.D. GA; 1:15-cv-01058]

Prather v. Wells Fargo
$2M preliminary settlement – Wells Fargo allegedly made autodialed, prerecorded debt collection calls to Debtor and Co-Signers mobiles on a student loan Wells purchased from a separate originator. Calls to the debtor allegedly continued despite requests they cease. The co-signer claimed he did not have a mobile at the time he co-signed on the loan, thus never consented to the calls. Highlights include:
• 2,075,071.80 non-reversionary settlement fund
• $20 and $60 for each class member
• $20,000 for class representative (requested)
• TBD for class counsel
[N.D. GA; 1:15-cv-04231]

jbho: Two reminders of the importance of good data hygiene.

FYI – Plaintiffs in both cases were represented by Troutman Sanders LLP.

$5 Million In Coast To Coast Settlements

Two New York Life Settlements With Business Plaintiffs

Abante Rooter and Plumbing v. New York Life
$3.35M preliminary settlement – New York Life allegedly made unsolicited autodialed, prerecorded telemarketing calls to plaintiff’s mobile (plaintiff is a small business owner). Highlights include:
• $3,350,000 settlement fund
• $10 for each class member (25,830 members)
• $10,000 for class representative
• $1,116,666 for class counsel (1/3 of settlement fund)
[S.D. N.Y.; 1:16-cv-003588]

Fromer Chiropractic v. New York Life
$1.1M settlement approved – New York Life allegedly sent unsolicited faxes that did not include the statutorily required opt-out notice. Highlights include:
• $1,100,000 settlement fund
• $400 for each class member (25,830 memebers)
• $15,000 for class representative
• $319,000 for class counsel (29% of settlment fund)
[C.D. CA; 2:15-cv-04767]

jbho: a reminder that B2B contacts are covered under the TCPA as well

$9.8 Million For Insurance Robocalls To Numbers On The National DNC List

Boise v. Ace USA
$9.8M Settlement – Ace allegedly made unsolicited automated telemarketing calls to plaintiff’s landline, a number on the National Do Not Call list. Plaintiff claimed he had no previous relationship with Ace, and never consented to the calls. Highlights include:
• $9,760,000 settlement fund
• ~$100 for each class member (expected)
• $10,000 for class representative (requested)
• $3,048,000 for class counsel (requested ~30% of settlement fund)
[S.D. FL; 1:15-cv-21264]
jbho: Consent! Consent! Consent!

Another Bite At The Orange? $5.3 Million Text Spam Settlement

Gragg v. Orange Cab
Preliminary $5.3M Settlement – Orange Cab allegedly sent unsolicited (ATDS) text messages in violation of the TCPA and Washington’s Commercial Electronic Mail Act (CEMA). Highlights include:
• $5,340,532 settlement fund
• $48 cash + $12 taxi voucher for each class member (~54,000 members)
• $7,500 for class representative
• $1,121,392 for class counsel (21% of settlement fund)
[W.D. WA; 2:12-cv-00576]
jbho: a long and winding road. Orange has been fighting this for years. The suit was initially filed in 2012. In 2014, the court granted Defendant’s MSJ on TCPA claims when it determined the system used (TaxiMagic) was not an ATDS (customer-specific text,
to individually collected/stored numbers, sent only when cab in vicinity of customer). However, the court later granted class certification on CEMA claims finding the ‘Dispatch Notifications’ in question could be used a as marketing tools. In 2015, Gragg filed a motion for consideration in the wake of the FCC omnibus rulemaking ‘clarifying’ the definition of an ATDS. In 2015, the court also found plaintiff demonstrated injury sufficient to meet CEMA’s liquidated damages provisions. That issue had been certified for review in the Washington State Supreme Court, but for whatever reason, the parties decided to settle at this point.

$3.5 Million Deal For Expired? Text Message Consents

Soular v. Northern Tier Energy (d/b/a/ SuperAmerica)
Preliminary settlement – Super America allegedly sent unsolicited (ATDS) text messages without Prior Express Written Consent. Highlights include:
• $2,200,000 – 3,500,000 settlement fund
• $50 in cash + $50 In-Store Award for each class member (subject to pro rata adjustment)
• TBD for class representatives
• $800,000 or 30% of approved claims (whichever is greater)
[D. MN; 0:15-cv-00556]
jbho: in reviewing the history of this case, it appears there was a dispute as to how Super America obtained consent, and whether it met the ‘written’ requirement effective 16Oct2013. Super America argued plaintiff texted them in September 2013, but the court declined a motion to dismiss on the consent basis.

Million Dollar Texts

Preman v. Pollo Operations
$975K settlement – Pollo allegedly sent unsolicited (ATDS) texts to plaintiffs mobile. Defendant claimed he had not patronized Pollo for several years and never consented to the texts. Highlights include:
• $975,000 reversionary setlement fund
• up to $50 for each class member (~40,000 people)
• $5,000 for class representative
• $243,750 for class counsel (25% of settlement fund)
[M.D. FL; 6:16-cv-00443]
jbho: in a motion to dismiss, Pollo argued plaintiff never replied STOP, so he should not be able to recover damages “he could have prevented through the exercise of reasonable care and diligence,” and only the first text should have been subject to liability. Guess we’ll have to wait for another time to see how that argument fares.

December 2016

$14.5 Million To End Text Spam Suit

Melito v. AEO
Preliminary settlement – American Eagle Outfitters (AEO), through its agents, allegedly sent unsolicited marketing texts, and continued to send despite receiving – and confirming – STOP requests. Highlights include:
• $14,500,000 non-reversionary settlement fund
• $142 to $285 for each class member (depending upon the number of claims submitted)
• $10,000 for each class representative (requested)
• $647,000 for settlement administration (expected)
• $4,832,850 (requested – 1/3 of settlement fund)
[S.D. N.Y.; 1:14-cv-02440]
jbho: Consent! Consent! Consent! And honor opt-outs!

$2 Million Settlement For Upsell In Operational Calls

Toney v. Quality Resources
Settlement approval – Quality allegedly made unsolicited autodialed telemarketing calls to plaintiffs’ mobiles. The calls were made to numbers provided on internet purchase forms that stated phone number was being collected for questions about orders. Calls were allegedly made under the guise of confirming an order, but would upsell goods and services of Quality and its clients. Highlights include:
• $2,150,000 non-reversionary settlement fund
• ~$270 for each class member
• $15,000 for class representative
• $760,274.71 for class counsel (35% of settlement fund)
[N.D. Ill; 1:13-cv-00042]
jbho: don’t try to overload an informational call with marketing.

Note that this settlement applies only to Sempris, a company that hired Quality Resources to make calls on its behalf. A fourth amended complaint has been filed against Quality Resources and its sole owner. A class was certified in that action (Doc# 363).

$9.3M To Settle Junk Fax Claims

Jefferson Radiation v. Advanced Care Scripts
Final settlement approved – Jefferson, through its agent, allegedly sent unsolicited faxes that failed to include the statutorily required opt-out notice. Highlights include:
• $9,250,000 non-reversionary settlement fund
• up to $599.99 for each class member
• $20,000 for class representative
• $1,874,432.27 for class counsel (20% of settlement fund)
[E.D. LA; 2:15-cv-01399]
jbho: yet another reminder that the TCPA covers faxes

Interesting here is that Jefferson attempted to implead its vendor WestFax as being responsible for the opt-out violations. However, that third party complaint was dismissed. Per the TCPA, a company is DIRECTLY liable for any faxes sent on its behalf.

November 2016

$50 Million Text Spam Settlement

Bull v. US Coachways
$50M settlement approved – US Coachways allegedly sent unsolicited (ATDS) marketing texts to numbers on the national Do Not Call list. Highlights include:
• $49,932,375 non-reversionary settlement fund
• ~350 for each class member
• $15,000 for each class representative
• $16.6M for class counsel (1/3 of settlement fund)
[N.D. Ill.; 1:14-cv-05789]
jbho: another reminder that plaintiffs can double-dip for violations of §227(b) & §227(c).

$10 Million Settlement For Dual Purpose Robocalls

Bennett v. Boyd Biloxi
Final settlement approval – IP Casino allegedly made unsolicited prerecorded message calls informing plaintiff of an offer of two free tickets to shows at the casino. The calls also encouraged plaintiff to visit a website to see “all of your offers.” Since the calls encouraged plaintiff to view online offers, the court found the calls encouraged recipients to engage in future purchasing activity, thus constituted telemarketing (requiring PEWC). Highlights include:
• $150 gift certificate for each class member (~68,000 class members)
o redeemable only at Boyd Biloxi gaming properties
• $3,500 for class representative
• $2,007,500 for class counsel
[S.D. AL; 1:14-cv-00330]
jbho: don’t try to overload an informational call with marketing.

Remeber that per the FCC’s 2003 Rulemaking “[o]ffers for free goods or services that are part of an overall marketing campaign to sell property, goods, or services constitute (an advertisement)” (2003 Report and Order ¶140). The court also referenced Chesbro v. BestBuy in its decision making (loyalty program reminder robocalls were telemarketing).

$9 Million Settlement Gets Final Nod

Ossola v. American Express
Final approval of $9M Settlement – AMEX, through its agents, allegedly made autodialed and prerecorded debt collection calls and autodialed & prerecorded telemarketing calls. Highlights include:

Debt Collection Class:
• $1,000,000, non-reversionary common fund for the benefit of 3,219 consumers
o at least $197.97 for each class member
• $5,000 for each class representative
• $352,713.52 for class counsel (33% of settlement fund + out-of-pocket costs)

Telemarketing Class:
• $8,250,000, non-reversionary common fund for the benefit of nearly 800,000 consumers
o at least $6.84 for each class member
• $10,000 for class representative
• $$2,769,380 for class counsel (33% of settlement fund + out-of-pocket costs)
[N.D. Ill.; 1:13-cv-04836]
jbho: Consent! Consent! Consent!

$7 Million For Wrong Number Calls

Abdeljalil v. GE Capital
Preliminary $7M settlement – GE (Synchrony) allegedly made autodialed, prerecorded debt collection calls to plaintiff’s mobile about his wife’s debt. Plaintiff claimed he had withdrawn consent after the first call from GE, but GE continued to contact him “on almost a daily basis for approximately three months.” GE also allegedly made autodialed, prerecorded debt collection calls to a second plaintiff at a reassigned mobile number, and continued to call despite being informed GE had reached a wrong number. Highlights include:
• $7,000,000 on-reversionary settlement fund
• ~$94.61 for each class member
• $5,000 for each class representative
• $2,1026,631.21 for class counsel (30% of settlement fund)
[S.D. CA; 3:12-cv-02078]
jbho: a reminder of the importance of good data hygiene.

Final OK Of $5.5 Million Wrong Number Settlement

In Re Convergent TCPA Litigation
Final approval of $5.5M settlement – Convergent allegedly made autodialed and prerecorded debt collection calls to skip traced numbers, and continued to call after being asked to stop or told they were reaching a wrong number. Highlights include:
• $5,500,000 non-reversionary fund
• ~$135 for each class member
• $5,000 for each class representative
• $385,000 for settlement administration
• $1,884,181.53 for class counsel (33% of settlement fund + out-of-pocket costs)
[D. Conn. 3:13-md-02478]
jbho: another reminder of the importance of good data hygiene.

$5 Million For Failing to STOP

Joseph v. TrueBlue
$5M preliminary settlement – TrueBlue allegedly sent (ATDS) text messages to plaintiff’s mobile after he opted-out. Plaintiff enrolled in the employment site’s text program, but stated he decided to opt-out due to the volume of texts. Plaintiff claims her received 55 texts over 12 days – all AFTER receiving a confirmatory opt-out text from TrueBlue. Highlights include:
• $5,000,000 non-revisionary settlement fund
• ~$1,694 for each class member
• $10,000 for class representative
• $1,681,169 for class counsel (33% of settlement fund)
[W.D. WA; 3:14-cv-05963]
jbho: Honor All Opt-Outs! Immediately!

$1.5 Million For Wrong Number Calls

Stemple v. QC Holdings
$1.5M settlement approved – QC allegeldy made autodialed and prerecorded debt collection calls to plaintiff’s mobile about another person’s debt. Highlights include:
• ~$1,208 for each class member
• $5,000 for class representative
• $216,000 for claims administration
• $500,000 for class counsel (1/3 of settlement fund)
[S.D. CA; 3:12-cv-01997]
jbho: same as above – importance of good data hygiene.

October 2016

$5.2 Million Robocall Settlement

Vasco v. Power Home Remodeling
$5.2 million settlement – Power Home Remodeling allegedly made unsolicited autodialed, prerecorded telemarketing calls plaintiff’s mobile. Plaintiff claimed he never provided his number to Power Home, and calls continued despite requests they stop. Highlights include:
• $5,200,000 non-reversionary settlement fund
• ~$27 for each class member
• $1,180,000 for class administration
• $3,000 for class representative
• $1,320,000 for class counsel (25% of settlement fund)
• unused portion of the settlement to a cy pres distribution
[E.D. PA; 2:15-cv-04623]
jbho: Consent! Consent! Consent!

September 2016

$76 Million Settlement For Survey Robocalls

Birchmeier v. Caribbean Cruise
Proposed $76 million settlement – Caribbean, in partnership with its agents, allegedly made unsolicited telemarketing robocalls under the guise of conducting surveys (offered a free cruise for completing a survey). Although the cruise was nominally free, consumer would still have to pay for taxes, port fees, gratuities, activities, etc. Calls were made to both mobiles and residential landlines. Highlights include:

  • Minimum $56 million settlement fund
    • capped at $76 million – depending on number of claims filed
  • Amount for each class member TBD (likely average of $1,500 each)
    • two settlement classes
      • three calls or less: will receive payment for three calls
      • more than three calls: will be paid for each of the calls received
    • each class member will receive $500 per call until the $76 million ceiling is hit, then amounts decline accordingly. If the $56 million minimum is not reached, the class members could receive up to $1,500 per call.
  • $10,000 for each class representative
  • up to $24,500,000 for class counsel (32% – 44% of settlement fund)

[N.D. Ill.; 1:12-cv-04069]
jbho: a reminder that if a ‘free’ offer will in any way cause consumers some out-of-pocket expense, it could be considered a marketing message. Additionally, the determination of whether a call constitutes ‘telemarketing’ will be based on the perception of the recipient (and the courts) – not your intent – so don’t try to overload ‘informational’ calls with dubious content.

You may also remember that Caribbean & friends entered into a $13.4 million settlement with the FTC for the same calls back in 2015. And the CRTC – in a joint cross-border investigation with the FTC – fined Caribbean $200,000 for the same calls to Canadians.

Proposed $10.5 Million Settlement For Telemarketing Robocalls

Thomas v. Dun and Bradstreet
Proposed settlement – Dun & Bradstreet Credibility Corporation (DBCC) allegedly made autodialed telemarketing calls to plaintiff’s mobile. Plaintiff claims he never consented to the calls, and calls continued despite request they cease. Highlights include:
• non-reversionary settlement fund of $10,500,000
• $60-$120 for each class member (estimated)
• $10,000 for class representative
• $800,000 for settlement administration
• $3,150,000 for class counsel (30% of settlement fund)
[C.D. CA; 2:15-cv-03194]
jbho: When someone says stop calling, STOP CALLING!

$3 Million For Spam Texts

Haghayeghi v. Guess
Proposed settlement – Guess allegedly sent unsolicited (ATDS) marketing texts to plaintiff’s mobile – a number that was voluntarily provided, but not provided for the purposes of receiving text messages. Highlights include:
• $15 for each class member (or a $30 voucher for Guess merchandise)
• $5,000 for class representative
• $495,000 for class counsel
[S.D. CA; 3:14-cv-00020]
jbho: Consent! Consent! Consent! And the context of that consent matters!

Note that the texts here were sent in 2013, so only required prior express consent.

August 2016

$30 Million In Another Robocall Settlement

Cross v. Wells Fargo
Preliminary approval of $30 million Settlement – Wells Fargo allegedly made unsolicited autodialed and prerecorded message calls about overdrafts of deposit accounts to plaintiff’s reassigned mobile number. Calls allegedly continued despite plaintiff informing Wells Fargo she was not a customer and repeated requests for calls to stop.

Highlights include:
• $30,446,022.75 non-reversionary settlement fund
• $4.75 for each class member
• $15,000 for class representatives
• $9,000,000 for class counsel (30% of Settlement fund)
[N.D. GA; 1:15-cv-01270]
jbho: reminder of the importance of good data hygiene and honoring opt-outs.

You may remember a preliminary $16.3 million settlement was also recently announced in N.D. GA (Markos v. Wells Fargo) for failing to stop calling. Plaintiffs in both cases were represented by the same attorneys.

$7 Milion Robocall Settlement

Smith v. State Farm
$7M proposed settlement – State Farm allegedly used lead generation company Variable to make unsolicited robocalls advertising insurance products. At the motion to dismiss phase, the court found that since State Farm directed its agents to hire Variable, and contributed to the substance of Variable’s call processes, State Farm was sufficiently involved in the calls so that an agency relationship existed. Thus State Farm could be held vicariously liable for the calls.

Highlights include:
• ~ $60 for each class member
• $15,000 for each class representative
• up to $2.3 million for class counsel (33% of settlement fund)
[N.D. Ill; 1:13-cv-02018]
jbho: A reminder that dealing with list brokers can be a risky business. If you’re going to work with list brokers, make sure the data is collected in a fair and lawful manner, and get representations and warranties that you have consent to use that data. Additionally, make sure you have well-constructed contractual agreements to make sure vendor obligations are clearly defined, and liability is appropriately distributed.

Settlement For Wrong Number Texts

Foster v. Citibank
Notice of Settlement – Citibank allegedly sent some 28 unsolicited texts to plaintiff’s mobile. Plaintiff claimed he had no Citibank account, owed Citibank no money, and never requested the texts. Texts allegedly continued despite an opt-out reply, repeated requests to the Citibank help desk, and supplying information concerning the unsolicited texts on five separate occasions. Plaintiff filed a complaint with the CFPB and ultimately purchased a new phone.

No settlement amount was disclosed.
[M.D. N.C.; 16-cv-00775]
jbho: maybe you shouldn’t roll out a text program if you’re not ready to manage the opt-outs.

Looks like everyone moved quickly to settle this case. The complaint was filed on 27 June, and a Notice of Settlement was issued on the 10th of August.

July 2016

$35 Million For Unsolicited Robocalls

Hooker v. Sirius
Settlement announced – Sirius allegedly made unsolicited prerecorded message calls promoting its satellite service. Calls began after plaintiff purchased a vehicle that came with a free trial Sirius subscription. Plaintiff alleges he never consented to the calls, never provided his contact information to Sirius, and never gave the dealership permission to share that information.
Only the settlement amount has been announced. Details to follow.
[E.D. VA; 4:13-cv-00003]
jbho: a reminder that marketing robocalls require Prior Express Written Consent.

Last I checked, Sirius faces at least three other lawsuits for the same types of calls:
• Knutson v. Sirius
• Elikman v. Sirius
• Parker v. Sirius

$16.3 Million to End Debt Collection Robocall Suit

Markos v. Well Fargo
Preliminary $16.3 million settlement – Wells Fargo allegedly made autodialed and prerecorded debt collection calls to plaintiffs’ mobiles, and continued to call after request to stop. Highlights include:
• $16,318,937.25 non-reversionary settlement fund
• $25 – $75 per class member
• $20,000 for each class representative
• $4.9 million for class counsel (30% of settlement fund)

[N.D. GA; 1:15-cv-01156]
jbho: if someone says stop calling, STOP CALLING!

The complaint alleges Wells Fargo’s policy was to opt people out only after a written cease and desist request. Oral requests would result in a dialer ‘hold,’ but if a written cease and desist wasn’t received, it would automatically put numbers back in the dialer. Something you might want to share with your dialer folks.

$8.5 Million For SPAM Texts

Willis v. iHeartMedia
$8.5M Settlement – iHeartMedia allegedly sent unsolicited (ATDS) text messages promoting its radio stations. Texts were sent to numbers collected when individuals texted the stations with song requests or to enter contests. Highlights include:
• $200 for each class member
• $5,000 for each class representative
• $3.4 million for class counsel

[16-CH-02455 Circuit Courn of Cook County]
jbho: looks like an inbound text may not be sufficient to establish the Prior Express Written Consent needed to enroll users in ongoing text programs.

$3.75 Million for Calls to Reassigned Phone Numbers

James v. Chase
Preliminary Settlement – Chase allegedly made autodialed and prerecorded message calls to plaintiffs’ mobiles, and continued to call despite being informed chase was reaching incorrect numbers. Highlights include:
• $45 – $75 for each class member
• $5,000 for each class representative
• ~$1,140,000 for class counsel

[M.D. FL; 8:15-cv-02424]
jbho: when some says stop calling, STOP CALLING! And a reminder of the importance of good data hygiene.

More TCPA Fun

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