Kyla Asbury Sep. 8, 2014, 9:19am

SAN DIEGO (Legal Newsline) - A settlement has been reached in a class action lawsuit against Bass Pro Outdoor World that alleged it recorded certain telephone calls received from or placed to California, which violated state law.

"The proposed settlement agreement applies to class members defined as '[a]ll natural persons who, while present in California and using a telephone with a California area code, participated in at least one recorded telephone call to Bass Pro between March 14, 2012 and March 27, 2013 or at least one recorded telephone call from Bass Pro between March 14, 2012 and April 3, 2013'," the Aug. 5 order granting joint motion for preliminary approval of class action settlement states.

The monetary consideration consists of $6 million in cash, plus accrued interest.

No later than 15 court days following the preliminary approval date, the defendants are to transfer the $6 million settlement amount into an interest-bearing escrow account administered by the claims administrator.

The proposed settlement also reflects a change in the defendants' business practices in which they will not record any inbound telephone calls from California area codes without first giving notification at the outset of the call that the call may be recorded, according to the document.

The defendants have not recorded outbound calls to California since April 4.

"Furthermore, defendants have no intention to change these practices, but reserve the right to change these procedures in the event that there is a change in the law requiring two-party consent, or there is a finding by the California Legislature or California Supreme Court that defendants' telephone calls do not fall within the scope of the California Invasion of Privacy Act in whole or in part," the document states.

The proposed settlement also requires the claims administrator to provide notice by mail and by publication, providing, among other things, a description of the terms of the settlement, instructions for submitting a claim, and directions to accessing the settlement website.

Following final court approval and occurrence of the "effective date," each participating class member will be entitled to receive a pro-rata portion of the net settlement amount—the amount available for distribution after payment of settlement costs, including attorneys’ fees, litigation expenses, a class-representative-enhancement award and administration expenses.

"Each participating class member will receive a settlement payment equal to the net settlement amount divided by the number of participating class members," the order states. "Any portion of the settlement amount not distributed to participating class members at the end of 120 days will be paid to a court-approved cy pres recipient."

On March 14, 2013, Geoffrey McDonald filed the class action lawsuit in the San Diego Superior Court, alleging that Bass Pro recorded telephone calls made to or received from California residents without their consent in violation of the California Invasion of Privacy Act

The defendants had the lawsuit removed to the U.S. District Court for the Southern District of California.

"After more than a year of litigation, the parties have reached a settlement which, upon final court approval, will resolve the claims of plaintiff and all putative class members," the settlement document states.

The settlement amount equates to approximately $197.49 for each potential class member for whom name and address information is reflected in the defendants' records.

"That calculation is apparently a result of dividing the full $6,000,000 settlement by the approximate 30,400 identifiable individual customers who make up the class," the settlement document states. "However, the full $6,000,000 amount will almost certainly not be available for distribution because of the attorneys' fees, litigation-costs, and service-payment deductions."

These values could amount to, respectively, $1.8 million, $150,000, and $20,000.

"Taking into account these deductions, the amount available for distribution to the class members could be as low as $4,030,000, which turns out to produce a $132.57 payment to each potential class member," the document states.

Bass Pro denies the allegations but has agreed to settle the lawsuit to avoid the expense and uncertainty of ongoing litigation.

A final hearing is scheduled for Dec. 15.

The plaintiffs are being represented by James F. Clapp, James T. Hannink and Zach P. Dostart of Dostart Clapp & Coveney LLP.

The defendants are being represented by Richard M. Segal and Nathaniel R. Smith of Pillsbury Winthrop Shaw Pittman LLP.

The case is assigned to District Judge Cynthia Bashant.

U.S. District Court for the Southern District of California case number: 3:13-cv-00889

From Legal Newsline: Kyla Asbury can be reached at

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