A Florida judge granted preliminary approval to a $19.5 million deal in a Telephone Consumer Protection Act (TCPA) suit brought against the Tampa Bay Buccaneers, alleging that the National Football League (NFL) team sent unsolicited fax advertisements for tickets to games.
The dispute began in June 2013 when Cin-Q Automobiles initiated an action against the Buccaneers, alleging that the team sent unsolicited fax ads in 2009 and 2010 offering tickets to NFL games that failed to provide the proper opt-out notice required by the TCPA. Over the course of three years, the parties engaged in extensive discovery, motion practice and mediation conferences with no result.
After progress stalled, Technology Training Associates (TTA) filed its own class action in May 2016 based on the same allegations and covering the same time period. Based in large part on the efforts made in the Cin-Q litigation, TTA and the Buccaneers reached a settlement agreement. Concurrently, the Cin-Q plaintiffs sought to intervene in the later suit and a third suit was filed between the attorneys involved in the cases.
U.S. District Court Judge Anthony E. Porcelli then considered Cin-Q's motions to consolidate the cases and intervene in the TTA action, as well as the unopposed motion for class certification and preliminary approval of the settlement deal between TTA and the Buccaneers.
The court first granted the motion to certify the TTA class and preliminarily approved the settlement agreement. The deal provides a settlement fund of up to $19.5 million for the upwards of 343,000 faxes allegedly sent to more than 131,000 unique fax numbers, with payments of up to $350 for the first facsimile and up to $565 total for up to five faxes to class members who submit claims.
Also covered by the fund: incentive awards, notice and administration costs, and fees, costs and attorneys' fees not to exceed 25% of the total fund. The Buccaneers further agreed not to send any unsolicited fax advertisements in violation of the TCPA going forward.
"Solely for purposes of preliminary approval, such terms appear fair, adequate, and reasonable," Judge Porcelli wrote. "Namely, though the potential recovery may exceed the agreed-upon amounts recoverable, the Settlement is either on par with or greatly exceeds prior TCPA settlements, both in the total amount in the Settlement Fund and in the amount awarded to each class member."
The court cited "the lengthy and detailed procedural history" of the Cin-Q action in support of granting approval, noting that the parties "can reasonably anticipate similar procedural hurdles, a lengthy duration, and great expense to both parties if they are forced to litigate the issues present in this action."
As for the Cin-Q plaintiffs, the court denied the motion to intervene as well as the motion to consolidate the cases. Any concerns presented by the Cin-Q plaintiffs may be addressed through the objection process pursuant to Federal Rule of Civil Procedure 23, the court explained, even the argument that the settlement agreement was the product of a "reverse auction."
These rulings did not foreclose the possibility of potential incentive awards to Cin-Q plaintiffs or possible attorneys' fee awards to their counsel, Judge Porcelli noted. He sent a final hearing date on the deal for October 2017.
To read the order in Technology Training Associates v. Buccaneers Limited Partnership, click here.
Why it matters: Although the court granted preliminary approval to the deal, a final stamp of approval will require that court decide the objections from the Cin-Q plaintiffs, who argued to the court the TTA case was the result of a "reverse auction," where the Buccaneers "negotiated with ineffectual lawyers and a plaintiff with the weakest claim to obtain a settlement in the hope that the Court will approve a weak settlement that will preclude other claims" against the defendant.