Three trips to the well on class cert before a tense settlement

 Dog Years

We present for your consideration yet another bruiser of a class action that went through multiple twists before settling out. Three amended complaints, three attempts at class certification, and many, many motions to dismiss. Altogether, nearly five years of litigation and just two periods of extended mediation.

The case started back in December 2014, when main plaintiff Christopher Legg took a swing at PetHealth, the self-proclaimed “leading provider of medical insurance for cats and dogs” in the United States. Shortly after adopting a (presumably) adorable kitten named Woodstock from the Florida Humane Society, Legg began receiving unrequested calls from the defendant reminding him to take advantage of their 30 days of free post-adoption insurance.

Those calls got Legg’s fur up.

Class Warfare

Legg’s suit charged PetHealth with violations of the Telephone Consumer Protection Act. And a looooong battle over the class ensued ‒ at issue were questions of whether a reminder email was strictly a telemarketing email, or if Legg and other class members consented to the calls through in-person conversations at the adoption agencies.

On this last issue, the court denied the second amended motion to certify by noting that the evidence “convinces the court that the trial in this case will be consumed and overwhelmed by testimony from each individual class member, and the shelter employee who assisted that member in the adoption process ... In short, the trial will involve hundreds, if not thousands, of mini-trials on the issue of consent alone.”

The Takeaway

The whole thing settled in early May 2019, even though “the settlement negotiations were highly adversarial, non-collusive, and at arm’s length.”

Why sit down with an enemy you’ve spent four years battling and failed twice to come to terms with?

“Plaintiff continues to believe that his claim against Defendants including that the class would eventually have been certified,” the suit maintained. But “nevertheless, Plaintiff and the Settlement Class would face a number of difficult challenges if the litigation were to continue including lengthy appeals if this Court again denied class certification.”

Legg was tired.

The settlement requires PetHealth to pay $5.5 million into a settlement fund for the 700,000-plus consumers who received a subset of the calls between October 2013 and November 2016. Text marketing and communications are subject to complex regulation under the TCPA, and the availability of statutory penalties makes these appealing to class action lawyers. While class certification can sometimes be a challenge, these cases are a gravy train for the plaintiff’s bar. Consult legal counsel to develop a sound compliance program before using this effective advertising technique.