Elizabeth Schubert Jan. 20, 2016, 9:48am


MOBILE, Ala. (Legal Newsline) - An Alabama federal court has rejected a proposed class action settlement involving alleged violations of the Telephone Consumer Protection Act (TCPA), saying the plaintiff didn’t prove the members of the proposed class suffered similar enough injuries.

Jason Bennett filed the suit against Boyd Biloxi, LLC, owner of IP Casino Resort and Spa in Biloxi, Miss. He claims the resort violated the TCPA after he and more than 70,000 others received more than 400,000 unlawful telemarketing calls promoting the spa.

Current TCPA regulations prohibit businesses from making automated, prerecorded calls without written consent from those on the receiving end.

But Judge William Steele, of the U.S. District Court in the Southern District of Alabama, refused Bennett’s proposed settlement on Dec. 7, claiming he did “not come close to bearing the burden of persuading the Court to certify the proposed settlement class.”

Why? The court says Bennett failed to prove his experience - he received a few phone calls on a mobile number - was similar to the 70,000 others who also received calls during the two-year period.

The defendant obtained the telephone numbers, both mobile and residential, from those who joined the spa’s rewards program, showing some form of consent. Steele took issue with that combination of mobile and residential numbers, according to attorney Marshall Baker, of Drinker Biddle & Reath in San Francisco.

“Bennett has to prove the phone calls he received, which were on his mobile phone, were similar to all the class members in the suit,” Baker said.

“There are certain privacy concerns with TCPA. The home is a sacred place, and most of us don’t want to answer telemarketing calls during dinner. A couple of calls on a cell phone lends to a different experience.”

The proposed settlement also estimated the average class member could be awarded between $3000 and $9000 if they filed individually. The court disagreed that Bennett’s class action suit was a better option.

Representing Bennett is the Alaska/Alabama law firm Underwood & Riemer, as well as John Cox of Spanish Fort, Ala. They are seeking up to $2 million in attorneys fees.

The decision is preliminary, Baker said. Bennett will have start over again, but has another opportunity to provide additional evidence.

“It’s important to note the court did not hold that the settlement was insufficient,” Baker said. “Instead, the court simply held that the plaintiff did not offer enough evidence that the settlement was sufficient.”

The defendant has already filed a brief in response to the settlement, and both parties want to come to an agreement. But that’s not enough to certify a class action suit, Baker said.

“The court still has to make sure all the requirements are met,” Baker said. “A class action suit represents unknown people, so it must serve as a gatekeeper in this case.”

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