Multimillion-dollar Telephone Consumer Protection Act settlements continue, with a Louisiana federal court judge recently granting final approval to a $9.25 million deal in a case involving fax advertisements.
Jefferson Radiation Oncology LLC accused Advanced Care Scripts (ACS) of violating the statute by sending thousands of unsolicited fax messages nationwide over a five-year period to advertise its medications and services without the required opt-out notification.
The defendant responded that it had express permission from a substantial majority, if not all, of the fax recipients to receive the ads. The company also filed claims against the fax broadcasting company it used to send the faxes and petitioned for a retroactive waiver for any violation of the opt-out notice requirements from the Federal Communications Commission.
After discovery, the parties agreed to mediation and ultimately reached a settlement agreement in early 2016. Pursuant to the terms, ACS will pay $9.25 million to class members, who do not need to submit claims to receive payment. Instead, they will receive compensation based on the number of successful fax transmissions reflected in records maintained and produced by the defendant.
U.S. District Court Judge Lance M. Africk granted preliminary approval of the deal and certified a class of "all persons and entities that received facsimile transmissions from ACS or its vendor that allegedly advertise, promote, or describe ACS's products or services, and do not contain the statutorily required opt-out notice during the time period of April 29, 2011 to February 19, 2016."
Once payment has been made for settlement administration costs, attorney's fees of $1.85 million and costs of just over $24,000, as well as a $20,000 incentive award for Jefferson Radiation, the approximately 24,000 class members will receive the remainder of the settlement funds. Any remaining money will be given to the American Cancer Society as a cy pres beneficiary.
In December, Judge Africk gave his final approval to the agreement, noting that no members of the settlement class had objected and only one class member opted out.
To read the memorandum in support of unopposed motion for preliminary approval of settlement and class certification in Jefferson Radiation Oncology v. Advanced Care Scripts, click here.
To read the order granting final approval, click here.
Why it matters: This case is a reminder for any company that transmits facsimile advertisements to include a TCPA compliant opt-out notice. Simply informing fax recipients of their right to opt-out and the method for doing so is not enough. The opt-out must conform in all respects to prescribed FCC regulations or else risk challenge by aggressive plaintiffs and their counsel.