Telephone Consumer Protection Act
Kimble v. First American Home Warranty Corp.,
No. 23-cv-10037, 2024 WL 3325705 (E.D. Mich. Jul. 8, 2024) (Lawson, J.)
The Plaintiff brought a Telephone Consumer Protection Act (TCPA) class action against a home warranty company, alleging that calls were received despite being listed on the National Do Not Call Registry. After reaching a settlement through negotiation, the parties moved for final certification and for fees, costs and service award. The Court granted the motion.
In reviewing the settlement notice, the Court observed notice via first-class mail was sent to 20,762 members, an amount less than the expected 21,953 class members identified. The notice provider found 1,185 of these were duplicate entries, and six were without a valid address. A total of 3,311 notices were returned as undeliverable, and 144 of these were resent with forwarding information. The remaining undeliverable contacts (excluding 160 returned after the response deadline) were traced using a service, resulting in updated addresses for 1,633 members. Notices were reissued, with 160 returning undeliverable. In total, 19,068 notices were successfully mailed.
The Court also looked at the email notification sent to 20,642 class members with email addresses, including the six who did not have mailing addresses. Out of these, 18,147 emails were successfully delivered, 2,495 bounced back, 6,552 were opened and 807 recipients followed the link to the website.
In total, the Court found 20,373 members, or 98.1%, had received notice. There were 10,424 website visits, 562 calls to the hotline, 3,295 claim forms submitted and 235 claims from unverified potential class members, one of which had filed supporting information. There were 51 members who filed opt-outs and four unverified members. As of the April 30, 2024, deadline, no class member had objected.
Looking at certification, the Court found numerosity met by the number of members, and commonality met by claims falling under the same ad campaign and shared status as Do Not Call registrants. Typicality was also met by Defendants’ common policy against the class as a whole. Adequacy was met, as the Plaintiff and counsel were capable and without conflict of interest. Rule 23(b)(3) was also met: The Plaintiff’s interests aligned with the class and were considered identical with respect to the TCPA.
Turning next to the settlement itself, the Court found the agreement met all seven 6th Circuit Whitlock factors, which include risk of fraud and collusion, complexity and expense, significant discovery, prospects of success, counsel’s participation, opportunity for objectors and public interest in efficient resolution.
Turning to the fee award, the Court applied the percentage of fund method and found 27.85% of the total fund was consistent with other TCPA actions. The lodestar cross-check was found to be somewhat higher. However, when evaluated against the Moulton factors that courts consider when deciding which method to favor, the Court concluded that the contingent nature of the fee and the substantial recovery for class members supported approval of the request. The Court also found the costs of administration and the service award were reasonable.
