JWD Automotive, Inc. v. DJM Advisory Group LLC et al
Filing
73
OPINION AND ORDER denying without prejudice 70 Plaintiff's Unopposed Revised Motion for Preliminary Approval of Class Action Settlement; 72 Unopposed Motion to Substitute or Amend Motion for Preliminary Approval of Class Action Settlement and Notice to Class. Any party wishing to file revised documents or otherwise respond to the issues raised must do so on or before Monday, July 17, 2017. See Order for details. Signed by Judge John E. Steele on 7/6/2017. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JWD
AUTOMOTIVE,
INC.,
a
Florida
corporation,
individually
and
as
the
representative of a class of
similarly situated persons
d/b/a NAPA Auto Care of Cape
Coral,
Plaintiff,
v.
Case No: 2:15-cv-793-FtM-29MRM
DJM
ADVISORY
GROUP
LLC,
BANNER
LIFE
INSURANCE
COMPANY, and WILLIAM PENN
LIFE INSURANCE COMPANY OF
NEW YORK,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Unopposed
Revised Motion for Preliminary Approval of Class Action Settlement
and Notice to the Settlement Class (Doc. #70) filed on June 23,
2017, and Plaintiff’s Unopposed Motion to Substitute or Amend
Motion for Preliminary Approval of Class Action Settlement and
Notice to Class (Doc. #72) filed on June 30, 2017.
For the reasons
stated below, the court denies both motions without prejudice.
I.
This is a junk fax case.
On December 21, 2015, Plaintiff JWD
Automotive, Inc. filed a class-action complaint (Doc. #1) against
DJM Advisory Group LLC (DJM Advisory), Banner Life Insurance
Company (Banner), and William Penn Life Insurance Company of New
York (William Penn) (collectively, Defendants). 1
The one-count
Complaint accuses Defendants of violating the Telephone Consumer
Protection
Act
of
1991
Protection
Act
(JFPA)
of
(TCPA),
2005,
as
47
amended
U.S.C.
by
§
the
227,
Junk
by
Fax
sending
Plaintiff (and others) unsolicited commercial advertisements by
facsimile machine (i.e. “junk faxes”).
Plaintiff alleges that,
by sending these junk faxes, Defendants caused Plaintiff and others
to lose paper and toner, occupied their phone lines and fax
machines, and violated their privacy interests.
On November 21, 2016, the Court denied (Doc. #54) the two
defense motions (Docs. ## 28, 30) seeking to dismiss the Complaint
or, alternatively, to strike the Complaint’s “fail-safe” class
definition.
The parties have since agreed to settle this lawsuit 2
and now request an order preliminarily approving the Settlement
Agreement (Doc. #70-1) and authorizing notice and a proof of claim
form be sent to members of the proposed class. 3
Plaintiff also
1
The Complaint originally listed John Does 1-10 as defendants,
but Plaintiff has since voluntarily dismissed them (Doc. #64).
2
Prior to reaching the settlement, Plaintiff had not yet filed a
Motion for Class Certification.
3
On June 13, 2017, the Court held a telephonic hearing on
Plaintiff’s original Unopposed Motion for Preliminary Approval of
Class Action Settlement and Notice to Class (Doc. #62), after which
Plaintiff filed the revised Motion now before the Court.
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seeks leave to amend the Settlement Agreement to, in essence,
increase the number of potential class members from 359,000 to
488,424.
II.
A.
Motion to Amend Motion for Preliminary Approval
Plaintiff “respectfully requests leave to substitute or amend
the Motion [for Preliminary Approval] to clarify that, based on
Plaintiff’s investigation and an analysis of Defendants’ agent
Comcast’s call records, Defendants may have attempted to send faxes
to approximately 488,424 unique fax numbers and that this likely
resulted in the successful delivery of facsimile advertisements to
approximately 359,000 recipients.”
the
Settlement
approximately
Agreement
488,424
(Doc. #72, p. 2.)
would
unique
fax
read:
As amended,
“Defendants
numbers
that
called
Plaintiff’s
attorneys have concluded based on a review of call records resulted
in the successful delivery of facimile [sic] advertisements to
approximately 359,000 recipients.”
(Doc. #72-2.)
This is the
only change to the Settlement Agreement proposed.
While not entirely clear, it appears Plaintiff is saying that,
of the 488,424 faxes Defendants attempted to transmit, only 359,000
were received by (i.e. caused a temporary “occupation” of) the fax
machine on the other end.
If that is indeed the case, the Court
hesitates to permit expansion of the class in this manner.
Unlike
the 359,000 class members whose statutorily-protected right to be
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free
from
intrusive
junk
faxes
was
allegedly
violated
by
a
successful fax transmission, none of the 130,000 new class members
to whom the attempted transmission failed appears to have suffered
any concrete harm, as required to confer Article III standing. 4
For example, none of their fax toner or paper was consumed, and no
unauthorized occupation of their fax lines occurred. See Palm Beach
Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d
1245, 1251 (11th Cir. 2015) (concluding Plaintiff had “Article III
standing sufficient to satisfy the injury requirement because it
ha[d] suffered a concrete and personalized injury in the form of
the occupation of its fax machine for the period of time required
for the electronic transmission of the data (which, in this case
was one minute)”); see also Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016) (“A ‘concrete’ injury must be ‘de facto’; that
is, it must actually exist.”).
Plaintiff’s request to expand the class to include nearly
130,000
members
who
seemingly
lack
standing,
but
who
may
nevertheless be eligible to collect a pro rata share of the $3.5
million
settlement
fund,
potentially
diminishes
the
amount
available to pay class members who clearly do have standing, and
thus
calls
into
question
whether
4
Plaintiff
“will
fairly
and
The Court discussed Plaintiff’s own Article III standing to
pursue this action in significant detail in its Opinion and Order
denying Defendants’ Motions to Dismiss. (Doc. #54, pp. 3-8.)
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adequately protect the interests of the class.”
23(a)(4).
Fed. R. Civ. P.
The Court wishes to have this concern addressed prior
to amendment and preliminary approval.
Accordingly, Plaintiff’s
Motion to Amend is denied without prejudice.
B.
Revised Motion for Preliminary Approval
The Court also denies without prejudice Plaintiff’s Revised
Motion for Preliminary Approval of Class Action Settlement and
Notice to the Settlement Class.
The Court’s additional concern
is that, while the Settlement Agreement defines the class as “[a]ll
persons who were sent one or more facsimiles December 21, 2011 to
the present” (Doc. #70-1, p. 4 (emphasis added)), and further
states that “[c]laiming class members shall be paid their pro rata
share of the Settlement Fund, up to and no more than $500.00 per
fax” (id. p. 6 (emphasis added)), the proposed Proof of Claim Form
(Doc. #70-1, p. 26) does not allow class members who received more
than one fax at the same fax number to so indicate.
As a result,
some class members may be prevented from recovering their true pro
rata share of the settlement fund. 5
The amended documents should
either resolve this discrepancy or explain to the Court why there
is, in fact, no discrepancy.
5
The JFPA authorizes recovery of $500 for each violation, and a
single junk fax can cause multiple violations. Lary v. Trinity
Physician Fin. & Ins. Servs., 780 F.3d 1101, 1106 (11th Cir. 2015).
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Additionally, before the Court will preliminarily approve a
settlement
and
authorize
notice
to
the
proposed
class,
the
following additional changes – indicated by the underlined text –
are contemplated:
•
Page 2 of the Notice of Class Action Settlement: “You
must send your request to each of the following
attorneys, and they will inform the Court of your
request.”
•
Page 3 of the Notice of Class Action Settlement: “You
must also serve copies of your objection on Class
Counsel, Counsel for Insurer Defendants, and Counsel for
DJM Advisory Group (at the addresses above), postmarked
by the same date.”
•
Proof of Claim form (both sections 2(a) and 2(b)): “mine
or my company’s at some point from December 21, 2011
through the present.”
Furthermore, the Court is disinclined to require class members who
object to the settlement to include in their objection “a statement
of the identity (including name, address, phone number and email)
of any lawyer who was consulted or assisted with respect to any
objection,” as the parties have proposed.
4-5.)
(See Doc. #70-2, pp.
The parties may respond to these anticipated changes.
Finally, with respect to the approximately $1.167 million in
attorneys’ fees (exclusive of costs) the parties have agreed
Plaintiff’s counsel will recover, the Court notes that this sum
equals 33.3% of the total $3.5 million settlement fund, and thus
exceeds the 20-25% “benchmark” that the Eleventh Circuit has
recognized as presumptively reasonable.
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Faught v. Am. Home Shield
Corp., 668 F.3d 1233, 1242 (11th Cir. 2011).
Assuming this case
ultimately proceeds to a final fairness hearing on the settlement,
the Court will not approve an attorneys’ fee award of this amount,
unless the factors set forth in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974), are satisfied.
Faught, 668
F.3d at 1242.
It is hereby
ORDERED:
1.
Plaintiff’s Unopposed Revised Motion for Preliminary
Approval of Class Action Settlement (Doc. #70) and Unopposed Motion
to Substitute or Amend Motion for Preliminary Approval of Class
Action Settlement and Notice to Class (Doc. #72) are DENIED without
prejudice.
2.
Any party wishing to file revised documents or otherwise
respond to the issues raised herein must do so on or before Monday,
July 17, 2017.
DONE and ORDERED at Fort Myers, Florida, this 6th day of July,
2017.
Copies:
Counsel of Record
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