In documents filed last Thursday in federal court in Florida, Bank of America agreed to pay $1 million to settle a proposed TCPA class case. In the case, Swift v. Bank of America Corporation (Case No. 3:14-CV-1539, United States District Court, Middle District of Florida) Plaintiff alleged that Defendants, Bank of America Corporation, NB Holdings Corporation, and FIA Card Services, N.A. (collectively, Defendants) violated the TCPA by calling and texting cellular telephones through the use of an ATDS or an artificial or prerecorded voice without the prior express consent of Plaintiff and Settlement Class Members.
The factual and procedural background of the case and settlement were outlined in Plaintiff’s memorandum in support of their unopposed motion for preliminary approval of the class action settlement and certification of the settlement class.
On December 31, 2014, Plaintiff filed a class action complaint against Defendants. The complaint alleged violations of the TCPA and sought class certification, statutory damages, injunctive relief, and an award of attorneys’ fees and costs on behalf of Plaintiff and the proposed class. Plaintiff had alleged that the Defendants had placed calls and sent text messages through the use of an ATDS or an artificial or prerecorded voice to cellular telephones belonging to consumers who were not the intended recipients of the calls and texts, and who did not provide prior express consent to receive such calls and text messages.
On March 10, 2015, Defendants filed a Motion to Dismiss or Stay This Action. On April 3, 2015, Plaintiff filed his Response to Defendants’ Motion to Dismiss or Stay This Action. On June 18, 2015, the Court denied Defendants’ motion, and on July 2, 2015, Defendants filed an Answer to Class Action Complaint.
The parties then began Discovery proceedings. The parties also began exploring the potential for resolution of Plaintiff’s claims on a class-wide basis. The parties agreed to the appointment of a mediator to facilitate settlement discussions. The mediation resulted in the Stipulation and Agreement of Settlement (“Settlement”) that was before the Court in the unopposed motion for consideration.
The Settlement Class
The Settlement Class is an opt-out class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It is defined to include all persons who, between February 1, 2013 through April 19, 2016, received an auto-dialed and/or pre-recorded call or text message to their cellular telephone from Defendants about a Bank of America account (including, but not limited to, a mortgage, credit card, or auto loan account) other than their own Bank of America accounts, and who did not provide prior express consent to receive such calls or text messages.
The Monetary, Prospective and Other Relief for the Benefit of the Class
The Settlement requires Defendants to pay $1,000,000.00 into a settlement fund (Settlement Fund), which is non-reversionary. Class Members will receive a check for their equal share of the Settlement Fund. The check received by each Class Member will not be less than $15 and not more than $25.
In addition to the monetary payment, a significant aspect of the Settlement includes important prospective business practice changes. As a result of this action, Defendants have implemented enhancements to their servicing systems which are designed to prevent the calling of a cellular telephone unless a business record is systemically coded to reflect the called party’s prior express consent to call his or her cellular telephone.
Class Counsel will also seek, and Defendants will not oppose, a Service Award of $1,500.00 for Plaintiff (or in another lesser amount if set by the Court).
Attorney’s Fees and Costs
Subject to Court approval, Class Counsel will receive $250,000.00 for their attorneys’ fees, costs and expenses, which shall be paid from the Settlement Fund subject to approval from the Court. Defendants have agreed not to oppose Class Counsel’s motion so long they do not seek more than $250,000.00.
This case provides interesting perspective on how a settlement was apparently reached fairly quickly and efficiently in a TCPA case. The attorney’s fee award suggests that the matter was resolved before significant time was incurred by Plaintiff’s counsel.
The Settlement Class is also interesting. “All persons who, between February 1, 2013 through April 19, 2016, received an auto-dialed and/or pre-recorded call or text message to their cellular telephone from Defendants about a Bank of America account (including, but not limited to, a mortgage, credit card, or auto loan account) other than their own Bank of America accounts, and who did not provide prior express consent to receive such calls or text messages.”
That is a fairly broad, amorphous, group of individuals. As the Plaintiff memorandum suggests, the settlement discussions were “prompted by the parties’ desire to avoid the expense, uncertainties, and burden of protracted litigation, and to put to rest any and all claims or causes of action that have been, or could have been, asserted against Defendants arising out of the alleged TCPA violations.” The settlement appears to address those concerns.