Alabama federal judge gives TCPA class action settlement preliminary OK

By Jessica Karmasek | Aug 5, 2016

MOBILE, Ala. (Legal Newsline) - An Alabama federal court has preliminarily approved a class action settlement involving allegations of the federal Telephone Consumer Protection Act, after initially rejecting the proposed terms late last year.

Lead plaintiff Jason Bennett filed the lawsuit 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, pre-recorded calls without written consent from those on the receiving end.

In December, Chief Judge William Steele of the U.S. District Court in the Southern District of Alabama refused Bennett’s proposed settlement, claiming the plaintiff did “not come close to bearing the burden of persuading the Court to certify the proposed settlement class.”

However, the judge ordered the parties to supplement previous filings.

After reviewing the additional briefs and supplemental materials, Steele preliminarily approved the previously proposed settlement in a July 26 order.

Under the proposed settlement’s terms, class members who submit valid claims, postmarked before a Dec. 6 deadline, will each receive a class award of a fully transferable gift card with a value of $150 redeemable at Boyd Biloxi or other Boyd Gaming property, excluding Borgata Casino or any lease outlets or other franchises.

The card is good for one year and is redeemable for food, beverages, tickets, hotel rooms or gift shop items.

“As explained in its the order dated May 11, 2016, the Court was prepared to preliminarily approve the settlement as fair, reasonable and adequate based on the filings submitted at that point, but the Court delayed issuing a ruling to that effect due to issues expressed in that order,” Steele wrote in his order last month.

“The Court now finds that the Parties’ supplemental submissions satisfactorily address those issues.”

According to Steele’s order, the claims administrator -- in this case, American Legal Claim Services LLC -- must send, via U.S. mail, class settlement notices to all potential settlement class members no later than Aug. 23.

The deadline to opt out of or file an objection to the settlement is Oct. 4, with a final approval hearing set for Nov. 7.

The deadline to object to class counsel fees or class representative awards is Nov. 21. Earl Underwood and Kenneth J. Riemer of Alaska/Alabama law firm Underwood & Riemer and attorney John Cox of Spanish Fort, Ala., have been appointed class counsel.

According to previous reports, the plaintiffs’ attorneys are seeking up to $2 million in fees for handling the class action.

Under the TCPA, telephone solicitations, i.e. telemarketing, and the use of automated telephone equipment are strictly prohibited.

In particular, the law limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines. It also specifies several technical requirements for fax machines, autodialers and voice messaging systems -- principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.

Generally, the act makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party” except in emergencies or in circumstances exempted by the Federal Communications Commission.

The law permits any “person or entity” to bring an action to enjoin violations of the statute and/or recover actual damages or statutory damages ranging from $500 to $1,500 per violation.

From Legal Newsline: Reach Jessica Karmasek by email at

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U.S. District Court for the Southern District of Alabama Underwood & Riemer PC

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