Kyla Asbury Dec. 8, 2014, 10:42am

SAN DIEGO (Legal Newsline) - A federal judge has granted preliminary approval of a settlement in a class action lawsuit against Kaiser Permanente for sending unsolicited, pre-recorded messages to former customers' cell phones.

Kaiser will pay $5.35 million to settle the class action lawsuit in which Rafael David Sherman claimed it violated the Telephone Consumer Protection Act by sending the messages to cell phones of former customers after they had canceled their health insurance plans with the company, according to the order filed Dec. 4 in the U.S. District Court for the Southern District of California.

Class members can expect to receive a pro rata share of the settlement proceeds, and if all of the approximately 864,412 members file a claim, each will receive approximately $4, according to the settlement document.

District Judge John A. Houston also approved class certification.

"The court preliminarily finds that the lawsuit satisfies the applicable prerequisites for class action treatment under Fed. R. Civ. P. 23, for purposes of settlement only," Houston's order states.

If more than 1,000 class members opt out of the settlement, Kaiser has the right to terminate the settlement.

The class action lawsuit was initially filed on April 24, 2013, in federal court.

Sherman claimed Kaiser violated the TCPA when it called him after he canceled his health insurance plan with the company.

Sherman filed a motion for settlement on Oct. 21.

"The court preliminarily finds that the settlement of the lawsuit ... is in all respects fundamentally fair, reasonable, adequate and in the best interests of the class members...," the order states.

Attorneys fees will not exceed 25 percent of the settlement fund and an incentive award for Sherman will not exceed $1,500.

The defendant denies that it committed any wrongful act or violated any law or duty, including that it lacked prior express consent to make the calls, according to the settlement document.

A final approval hearing is scheduled for April 27.

Sherman is represented by Joshua B. Swigart of Hyde & Swigart in San Diego; and Abbas Kazerounian and Jason A. Ibey of Kazerouni Law Group APC in Santa Ana, Calif.

Kaiser is represented by Felicia Yu, and Janet M. Lee of Reed Smith LLP in Los Angeles.

U.S. District Court for the Southern District of California case number: 3:13-cv-00981

From Legal Newsline: Kyla Asbury can be reached at

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