Pursuant to a California federal judge’s preliminary approval order filed yesterday, Citizens Bank will pay over $4.5 million to settle a class action with more than one million members who claim it violated the Telephone Consumer Protection Act (TCPA) by allegedly calling consumers’ cellphones without their permission using an automated dialing system.
The case is Sanders, et. al v. RBS Citizens, N.A. (Case No. 3:13-cv-03136, United States District Court, Southern District of California). A complete copy of the Order Granting Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class may be found here.
On December 20, 2013, Plaintiff Linda Sanders (Plaintiff) commenced this class action against Defendant RBS Citizens, N.A. (“Defendant” or “Citizens”) seeking relief for violations of the TCPA.
Plaintiff alleged she was harmed when she received a number of unsolicited phone calls to her cellular telephone made by Defendant. Defendant’s telephone calls were allegedly placed using an “automatic telephone dialing system” (ATDS), as defined by the TCPA, and using an “artificial or prerecorded voice” system in further violation of TCPA. Plaintiff states she did not consent to these calls. Plaintiff represents the Class Members, claiming they were similarly harmed by receiving unsolicited phone calls from Defendant through the use of an ATDS and artificial or prerecorded voice in violation of the TCPA.
Defendant denied, and continues to deny, calling Plaintiff or other putative class members in violation of the TCPA and without their consent.
The parties vigorously litigated the matter. Court records show over one hundred separate documents or pleadings filed in the two-and-one-half years since the case was filed. Prior to the settlement negotiations and mediation, the parties engaged in discovery requests and exchanges, litigating several discovery disputes. Plaintiff made a motion to compel discovery, seeking a dial list of calls made by Defendant, or by third-party vendors on Defendant’s behalf, and all documents relating to express consent. Class Counsel served Defendant with 133 document requests, issued twenty-one non-party subpoenas, and took a 30(b)(6) deposition of Defendant’s witness to confirm the class size.
The Proposed Settlement
The two parties reached a proposed settlement that will apply to all class members (Class Members) of this matter. The Settlement applies to a proposed Settlement Class that is defined as follows:
All persons in the United States who received a call on their cellular telephone from Citizens, or from any third parties calling on a Citizens account, made with an alleged automatic telephone dialing system (“ATDS”) and/or an artificial or pre-recorded voice from December 20, 2009 through July 13, 2015, whose telephone numbers are identified in the Class List. The parties estimate this Settlement Class consists of 1,013,615 class members.
Citizens agreed to establish a Settlement Fund in the amount of $4,551,267.50 to pay for awards to Settlement Class Members, settlement administration expenses, and any reasonable attorneys’ fees and costs approved and awarded by the Court.
As compensation for its services and to recover its expenses, Class Counsel will seek from the Court an award of attorneys’ fees of no more than 25% of the Settlement Fund. Class Counsel estimates that the attorneys’ fees will be up to $1,137,816.87. Also, Class Counsel is seeking actual litigation costs of no more than $25,000.
Plaintiff, as the class representative, will be paid up to $5,000 from the Settlement Fund as an incentive payment.
In addition to these expenses, the parties anticipate $553,027 in claims administration costs if 1% of the Class submit claims, and $628,461 if 5% of the Class submit claims.
Assuming the anticipated expenses are incurred and the claims participation rate is correct, a 1% claim rate would result in each Class Member receiving approximately $283.72, and a 5% claim rate would result in each Class Member receiving approximately $56.75.
The Court will hold a Fairness Hearing on Monday, January 23, 2017, at 10:30 a.m., in the Courtroom of the Honorable Cynthia Bashant, United States District Court for the Southern District of California, Courtroom 4B (4th Floor – Schwartz), 221 West Broadway, San Diego, CA 92101, for the following purposes:
- finally determining whether the Settlement Class meets all applicable requirements of Rule 23 of the Federal Rules of Civil Procedure, and thus, whether the claims of the Settlement Class should be certified for purposes of effectuating the Settlement; determining whether the proposed Settlement of the action on the terms and conditions provided for in the Settlement Agreement is fair, reasonable, and adequate and should be approved by the Court;
- considering any motion of Class Counsel for an award of attorneys’ fees and costs;
- considering the motion of the Plaintiff for a service award, if any;
- considering whether the Court should enter the [Proposed] Final Judgment and Order of Dismissal with Prejudice;
- considering whether the releases by the Settlement Class Members as set forth in the Settlement Agreement should be provided; and
- ruling upon such other matters as the Court may deem just and appropriate.
insideARM will continue to report on TCPA settlements as we learn of them. There is no unique insideARM perspective to add to this particular case. The settlement speaks for itself.