WHEELING. W. Va. (Legal Newsline) – Individual plaintiffs in multidistrict Telephone Consumer Protection Act litigation stand to pocket $38 each in a $28 million settlement proposed in federal court in March.

The proposed settlement followed after an appeals court's affirmation of a decision to dismiss two companies from the litigation.

U.S. District Court Judge John Preston Bailey
U.S. District Court Judge John Preston Bailey

"Plaintiffs and Monitronics have negotiated and the court has preliminarily approved a settlement that will resolve this Telephone Consumer Protection Act litigation," said the 23-page memorandum in support of the plaintiffs' unopposed motion for final approval of the class action settlement. "The proposed settlement requires Monitronics to establish a $28 million fund which will be used to pay settlement class members who have submitted claims, to pay settlement administration costs, and to pay plaintiffs' proposed service awards, attorneys' fees and litigation costs."

The memorandum was filed March 22 in U.S. District Court for West Virginia's Northern District and final approval is still pending.

"The parties have fulfilled all their obligations under the preliminary approval order, and notice has been completed," the memorandum said. "As of the claims deadline, 344,508 claims were submitted. Plaintiffs estimate that if the court approves the attorneys' fees and costs, and plaintiffs' service awards as requested, each claimant will receive a payment of approximately $38, an amount that compares favorably with other TCPA settlements approved by courts across the country."

If the settlement is approved, about $13 million would be distributed to class members while plaintiffs Dianna Mey and Philip Charvat would each receive $50,000, Jason Bennett would receive $6,012 and Scott Dolemba and Janet and Michael Hodgin would each receive $3,500.

Attorney fees in the settlement total more than $9.3 million, not including about $600,000 in class counsel "out-of-pocket costs."  

The settlement would release Monitronics from multidistrict litigation that alleges the company's authorized dealers, including VMS Alarms, VMS Alliance Security and ISI Alarms, violated the TCPA when they phoned a pitch for a security system package to prospective consumers.

In December 2016, U.S. District Court Judge John Preston Bailey dismissed UTC Fire & Security Americas and Honeywell as defendants from the multidistrict litigation that then comprised 30 cases. UTC Fire & Security Americas and Honeywell were alleged to have been vicariously liable for the telemarketing calls.

In his order granting summary judgment at the time, Bailey said there was no evidence that UTC or Honeywell "turned a blind eye when they learned of improper and illegal telephone calls."

"The earliest notice that Honeywell appears to have received of calls placed by or for ISI which violated the TCPA would have been after late April 2012, when two TCPA suits were filed," Bailey said in his order. "There is no indication in the record as to when Honeywell was served with the complaints in these cases."

Plaintiffs in the case also didn't try to reschedule an additional deposition they claimed was needed, though they had more than three months to do so following lift of a stay in June 2016, Bailey said in his order. 

"Thus, plaintiffs' own actions show that the deposition was not and is not critical, particularly when they fail to articulate any evidence that would be sought that could create a genuine issue of material fact," the order said.

Last fall, Monitronics agreed to pay $28 million to settle its part in the multidistrict litigation.

This past March, Bailey's order was affirmed by the U.S. Court of Appeals for the Fourth Circuit. 

"In sum, we hold that the district court did not abuse its discretion by denying plaintiffs' Rule 56(d) motion to defer ruling on summary judgment and that UTC and Honeywell were entitled to summary judgment because there was no triable issue regarding their purported ratification of VMS's and ISI's alleged TCPA violations," the Fourth Circuit ruled.

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