Cin-Q Automobiles, Inc. v. Buccaneers Limited Partnership et al

Filing 343

ORDER granting 324 Motion for Preliminary Approval of Class Action Settlement and Notice to the Class; granting 337 Motion for Appointment of Third-Party Settlement Administrator. A fairness hearing to determine final approval of the sett lement is scheduled to occur on November 9, 2022, at 10:00 a.m., in Courtroom 10A of the Sam M. Gibbons United States Courthouse, 801 North Florida Avenue, Tampa, Florida. This action is STAYED pending final approval of the settlement, except that su ch stay shall not prevent the filing of any motions, affidavits, or other filings necessary to obtain and preserve final judicial approval of the settlement. See Order for further details and deadlines. Signed by Magistrate Judge Anthony E. Porcelli on 3/29/2022. (JMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CIN-Q AUTOMOBILES, INC., et al.,
Plaintiffs,
v.

Case No. 8:13-cv-1592-AEP

BUCCANEERS LIMITED
PARTNERSHIP,
Defendant.
/
ORDER
Yet again, the Court confronts the issue of the propriety of the preliminary
approval of the settlement of the class claims in this matter. Currently before the
Court is the Unopposed Motion for Preliminary Approval of Class Action
Settlement and Notice to the Class submitted by Plaintiffs Cin-Q Automobiles, Inc.
(“Cin-Q”) and Medical & Chiropractic Clinic, Inc. (“M&C”) (collectively, “Cin-Q
Plaintiffs”) 1 (Doc. 324). Cin-Q Plaintiffs and Defendant Buccaneers Team LLC
f/k/a Buccaneers Limited Partnership (“BTL” or “Defendant”) reached a proposed
settlement regarding the class claims in this action and, by the instant motion, seek
preliminary approval of the class action settlement and issuance of notice to the
putative class. For the following reasons, the motion is granted, the class settlement
is preliminarily approved, and notice shall be provided in the manner and to the
Though Cin-Q Plaintiffs are the named plaintiffs in this action, the Court will refer to
them as Cin-Q Plaintiffs throughout this Order for consistency.

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extent outlined herein.
I.

Background
A.

Cin-Q Action

In June 2013, Cin-Q initiated this action against BTL, alleging that BTL sent
unsolicited advertisements via facsimile to Cin-Q in violation of the Telephone
Consumer Protection Act (“TCPA”), as amended by the Junk Fax Prevention Act
(“JFPA”). See Cin-Q Automobiles, Inc. v. Buccaneers Ltd. P’ship, et al., Case No. 8:13cv-1592-AEP (M.D. Fla. filed June 18, 2013) (“Cin-Q Action” or “this action”) (Doc.
1). The faxed advertisements pertained to Tampa Bay Buccaneers tickets and were
allegedly sent by or on behalf of BTL in 2009 and 2010. With the filing of the
Complaint, Cin-Q submitted an initial motion for class certification. Cin-Q Action,
(Doc. 5). A week later, Cin-Q submitted an Amended Complaint and an amended
motion seeking class certification. Cin-Q Action, (Doc. 7 & 8).
During the proceedings in the Cin-Q Action, the parties engaged in extensive
discovery, motion practice, and mediation conferences, with no resolution, over the
course of three years. Initially, BTL moved to dismiss Cin-Q’s First Amended
Complaint, arguing that no basis existed for holding BTL liable for the allegedly
unlawful actions of FaxQom, a third-party broadcast fax service, as the fax sent by
FaxQom to Cin-Q exceeded the limited authority BTL bestowed upon FaxQom.
Cin-Q Action, (Doc. 17). Mainly, BTL argued that it employed FaxQom as an
independent contractor and, alternatively, even if FaxQom could be considered an
agent of BTL, BTL specifically limited FaxQom’s authority to act by instructing it

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not to send unlawful facsimiles, meaning the fax sent to CinQ was the result of
FaxQom acting beyond the scope of its authority. Upon consideration, the Court
denied BTL’s Motion to Dismiss, finding that Cin-Q alleged sufficient facts to state
a prima facie case against BTL under a vicarious liability theory because Cin-Q
demonstrated that BTL was a “sender” who authorized FaxQom to send the
facsimile advertisements on its behalf and who received the benefits of those faxes
and that material issues of fact remained that were inappropriate for resolution at
that stage of the proceedings (Doc. 41).
Around the same time, Cin-Q moved to file a second amended complaint,
M&C moved to intervene, Cin-Q and M&C moved to submit a second amended
motion for class certification, and BTL subsequently moved to bifurcate the issues
of vicarious liability and class certification.

Cin-Q Action, (Doc. 37, 39, 63).

Following hearings on those and other motions, the Court permitted the filing of
the Second Amended Class Action Complaint, adding M&C as another named
plaintiff and putative class representative and rendering the amended motion for
class certification moot. Cin-Q Action, (Doc. 68). As to BTL’s request to bifurcate,
the Court granted it in part and denied it in part, indicating that discovery would
not be bifurcated but that the Court would take up the issue of liability on summary
judgment motions prior to consideration of the class certification issues. Cin-Q
Action, (Doc. 68).
Following several discovery disputes, BTL submitted its Motion for Final
Summary Judgment on the dispositive issue of BTL’s alleged vicarious liability

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under the TCPA and for alleged conversion of property. Cin-Q Action, (Doc. 12937). In sum, BTL argued that: (1) neither BTL nor the independent contractor it
retained, FaxQom, sent a facsimile to either Cin-Q or M&C or to any member of
the putative class; (2) if Cin-Q Plaintiffs received a single facsimile, it was sent by
entities unknown to BTL; (3) BTL was the victim of fraud; (4) as a result of that
fraud, BTL had no knowledge of, or control over, any of the individuals or entities
that may have been involved in sending facsimiles; and (5) BTL did not convert
Cin-Q or M&C’s property. Cin-Q Action, (Doc. 129). At the same time, Cin-Q
Plaintiffs submitted their Motion for Summary Judgment, arguing that: (1) BTL
was directly liable as the sender of unsolicited fax advertisements under the TCPA
and FCC regulations; (2) there is no vicarious-liability requirement in a TCPA
unsolicited-fax claim; (3) BTL was directly and vicariously liable under the common
law of agency and torts; and (4) it was irrelevant whether FaxQom physically
pressed the send button. Cin-Q Action, (Doc. 138).
Upon consideration of both motions for summary judgment, the responses
in opposition thereto, and several supplements by the parties, the Court denied both
summary judgment motions on December 17, 2014. Cin-Q Action, (Doc. 167). In
considering the TCPA claim, the Court concluded that the determination of “on
whose behalf” the faxes were sent and of whether BTL constituted the “sender” for
purposes of the TCPA remained questions for which material issues of fact existed
in the record because the source, scope, and form of the offending directive was
inconclusive. With respect to the conversion claim, the Court determined that it

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was ambiguous whether the complicated and shifting relationship between BTL and
FaxQom lent itself to a finding that FaxQom’s actions were attributable to BTL
under Florida agency law and whether the conduct at issue exceeded the scope of
FaxQom’s authority.
Throughout 2015 and 2016, Cin-Q Plaintiffs and BTL continued to engage in
extensive motion practice after the denial of the summary judgment motions,
including Cin-Q Plaintiffs’ motion for reconsideration, BTL’s motions to
consolidate cases, and BTL’s motion to bifurcate and proceed directly to trial on the
issue of liability. Cin-Q Action, (Doc. 168, 169, 170, 178). During that time, the
Court denied the request to reconsider the Order denying the motions for summary
judgment and determined that continuing the bifurcated procedure risked an
unnecessary trial and multiple intervening appeals that posed an even greater threat
to the speedy and inexpensive disposition of this action. Cin-Q Action, (Doc. 181).
Additionally, the Court declined to certify questions for interlocutory review and,
instead, indicated that the action would proceed directly to discovery in aid of CinQ Plaintiffs’ anticipated motion for class certification under Rule 23. Cin-Q Action,
(Doc. 181).
Cin-Q Plaintiffs and BTL continued to engage in discovery in preparation for
the filing of the class certification motion and sought several extensions for the
submission of the motion. Finally, on March 25, 2016, after surviving BTL’s
motions to dismiss and for summary judgment, Cin-Q Plaintiffs submitted another
motion for class certification. Cin-Q Action, (Doc. 207). As set forth more fully in

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the class certification motion, Cin-Q Plaintiffs detailed the actions that led to the
purported transmission of the fax advertisements (Doc. 207, at 3-9). To summarize,
BTL hired FaxQom to send fax advertisements for Tampa Bay Buccaneers football
games in 2009 (Doc. 207, Ex. 1, Deposition of Matthew Kaiser (without exhibits)
(“Kaiser Dep.”), at 66-108).

According to Cin-Q Plaintiffs’ expert, Robert

Biggerstaff (“Biggerstaff”), FaxQom used USADatalink and 127 High Street for the
lists of fax numbers and as a fax broadcaster to physically transmit the faxes (Doc.
207, Ex. 4, Expert Report of Robert Biggerstaff (the “Biggerstaff Report”)), ¶¶1 &
19). Beginning with the August 2009 faxes, FaxQom retained the services of Rocket
Messaging Inc. (“RMI”) as a fax messaging service (Biggerstaff Report, ¶1; Doc.
207, Ex. 7, Declaration of Ian Jenkins (“Jenkins Decl.”), ¶¶2 & 5); Doc. 207, Ex. 8,
Deposition of Ian Jenkins (without exhibits) (“Jenkins Dep.”), at 31-47). Based on
a review of the records provided from 127 High Street and RMI, Biggerstaff opined
that he could determine the amount of unique fax numbers and successful error-free
transmissions, despite some deficiencies with the records provided. Specifically,
Biggerstaff estimated that BTL successfully sent 343,122 faxes to 131,011 unique
fax numbers offering tickets to Tampa Bay Buccaneers football games from July
2009 through June 2010, with (1) 102,526 successful error-free transmissions
received by 102,524 unique fax numbers from 127 High Street and (2) 240,596
successful error-free transmissions received by 120,232 unique fax numbers from
RMI (Biggerstaff Report, ¶¶1, 16, 22). Based on the volume of fax advertisements
sent, Cin-Q Plaintiffs sought class certification, defining the proposed classes as

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follows:
Class A:
All persons or entities who were successfully sent facsimiles offering
tickets to Tampa Bay Buccaneers games from July 14, 2009, through
July 16, 2009, which contained the following statement at the bottom
of the fax: “To immediately and permanently remove your fax number
from our opt-in compiled database, please call 877-272-7614.
[e-mail].”
Class B:
All persons or entities who were successfully sent facsimiles offering
tickets to Tampa Bay Buccaneers games from August 17, 2009,
through August 20, 2009, which contained the following statement at
the bottom of the fax: “To immediately and permanently remove your
fax number from our opt-in compiled database, please call 888-7039205. [e-mail].”
Class C:
All persons or entities who were successfully sent facsimiles offering
tickets to Tampa Bay Buccaneers games from May 24, 2010, through
June 9, 2010, which contained the following statement at the bottom
of the fax: “If your office has decide[d] to opt-out of further faxes
please call 866-247-0920. Thank you.”
See Cin-Q Action, (Doc. 207). 2
BTL planned to contest Cin-Q Plaintiffs’ motion, including the findings set
forth by Biggerstaff. To that end, BTL received extensions to file its response to the
Motion for Class Certification, during which the parties continued to leave
settlement discussions open. BTL then moved, on April 18, 2016, for a settlement

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Notably, the Second Amended Complaint defined a single proposed class as follows:
All persons from July 1, 2009, to present who were sent facsimile
advertisements offering group tickets or individual game tickets for the
Tampa Bay Buccaneers games and which did not display the opt out
language required by 47 C.F.R. 64.1200.

See Cin-Q Action, (Doc. 70, at 5).
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conference before the Court or a designee as the parties had reached an impasse in
their other settlement efforts, which Cin-Q Plaintiffs opposed. Cin-Q Action, (Docs.
215 & 219). Indeed, in April 2016, the mediator declared an impasse. Cin-Q Action,
(Doc. 218). BTL thus never submitted a response to Cin-Q Plaintiffs’ third motion
seeking class certification.

Rather, on May 12, 2016, BTL filed a Notice of

Pendency of Related Action indicating that a related action was filed in the Circuit
Court of the 13th Judicial Circuit in and for Hillsborough County, Florida,
captioned Technology Training Associates, Inc. v. Buccaneers Limited Partnership, et al.,
Case No. 16-CA-004333 (Fla. Cir. Ct.) (filed May 6, 2016). Cin-Q Action, (Doc.
222). The filing of that action set off a firestorm of activity, culminating in nearly
six more years of litigation.
B.

Technology Training I Action

Namely, after the settlement discussions in the Cin-Q Action initially reached
an impasse, and while the Motion for Class Certification remained pending in the
Cin-Q Action, Technology Training Associates, Inc. and Larry E. Schwanke, D.C.
d/b/a Back to Basics Family Chiropractic (“TTA Plaintiffs”) contacted BTL
regarding pursuit of the same class claims on behalf of the same purported class at
issue in the Cin-Q Action. Subsequently, on May 6, 2016, TTA Plaintiffs initiated an
action against BTL in the Circuit Court of the 13th Judicial Circuit in and for
Hillsborough County, Florida, alleging violations of the TCPA on behalf of the
same class as the Cin-Q Action and regarding the same facsimile advertisements. See
Tech. Training Assocs., Inc. v. Buccaneers Ltd. P’ship, No. 16-CA-4333 (Fla. Cir. Ct.)

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(filed May 6, 2016) (“Technology Training I Action”) (Doc. 1); Cin-Q Action, (Doc.
223, Ex. A). TTA Plaintiffs similarly sought damages and injunctive relief under
the TCPA both on behalf of themselves and a proposed class of similarly situated
persons. Upon becoming aware of the pending Technology Training I Action, Cin-Q
Plaintiffs sought to enjoin BTL from proceeding in the Technology Training I Action
and moved for an order immediately certifying the class in the Cin-Q Action rather
than in any other action. Cin-Q Action, (Docs. 223 & 224). Cin-Q Plaintiffs also
asked the state court on May 13, 2016, to allow them to intervene in the Technology
Training I Action or to strike the class allegations and disqualify TTA Plaintiffs’
counsel (Doc. 223, Ex. D). The state court set the motion for a hearing to occur on
May 19, 2016, but, prior to the state court’s consideration of Cin-Q Plaintiffs’
motion, TTA Plaintiffs voluntarily dismissed the Technology Training I Action on
May 18, 2016.
Shortly thereafter, and given the existence of the claims by TTA Plaintiffs,
the undersigned conducted a status conference in the Cin-Q Action on May 25, 2016
to address multiple motions filed by the parties in this action, including BTL’s
motion for settlement conference, Cin-Q Plaintiffs’ motion to enjoin BTL from
participating in a competing case, and BTL’s motion for a determination that the
mediation privilege had been waived. Cin-Q Action, (Docs. 215, 223, 231). After
hearing oral argument regarding the motions and the status of the Technology
Training I Action, the undersigned denied all three motions and directed Cin-Q
Plaintiffs and BTL to conduct another mediation conference prior to BTL’s June

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20, 2016 deadline for filing a response to the Motion for Class Certification in this
action. Cin-Q Action, (Doc. 233). During the hearing, the undersigned further
directed that, if BTL entered into a settlement affecting class certification in the CinQ Action, BTL must notify Cin-Q Plaintiffs of the potential settlement in any separate
action three days prior to the filing of any settlement or other filing relating to a
settlement.
C.

Technology Training II Action

Following dismissal of the Technology Training I Action, TTA Plaintiffs and
BTL conducted two days of mediation, which resulted in an agreement on a class
settlement (the “TTA Settlement”) on June 16, 2016. Upon reaching the TTA
Settlement with TTA Plaintiffs, BTL provided written notice to Cin-Q Plaintiffs of
the TTA Settlement in accordance with the undersigned’s directive at the May 25,
2016 hearing. Subsequently, TTA Plaintiffs initiated a new action on June 20, 2016.
See Tech. Training Assocs., Inc., et al. v. Buccaneers Ltd. P’ship, Case No. 8:16-cv-1622AEP (M.D. Fla.) (“Technology Training II Action”) (Doc. 1). TTA Plaintiffs filed
their Class Action Complaint on behalf of themselves and a class of similarly
situated individuals, alleging claims for violations of the TCPA, conversion, and
invasion of privacy. Technology Training II Action, (Doc. 1). Essentially, TTA
Plaintiffs alleged that BTL violated the TCPA by sending unsolicited
advertisements by facsimile in 2009 or 2010 offering tickets to Tampa Bay
Buccaneers games, while failing to provide the proper opt-out notice required by the
TCPA. In doing so, TTA Plaintiffs defined the similarly situated members of the

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class as:
All persons who, in 2009 or 2010, received one or more facsimile
advertisements sent by or on behalf of [BTL] and offering tickets for
Tampa Bay Buccaneers games.
Technology Training II Action, (Doc. 1, ¶17).

Specifically excluded from the

settlement class were the following persons: (1) BTL and its respective parents,
subsidiaries, divisions, affiliates, associated entities, business units, predecessors in
interest, successors, successors in interest and representatives and each of their
respective immediate family members; (2) Class Counsel; and (3) the judges who
have presided over the litigation and any related cases. Technology Training II Action,
(Doc. 1, ¶18). As for the relief requested, TTA Plaintiffs sought statutory damages,
treble damages, injunctive relief, costs, and attorney’s fees.
On the same day, Cin-Q Plaintiffs filed a Motion to Transfer Related Case
under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class
Counsel, seeking to (1) transfer the Technology Training II Action to the undersigned
pursuant to Local Rule 1.04(b); (2) consolidate the Cin-Q Action with the Technology
Training II Action following transfer; and (3) appoint the law firms of Addison &
Howard, P.A. (“Addison & Howard”), and Anderson + Wanca as interim co-lead
counsel for the class. Technology Training II Action, (Doc. 8). Additionally, on that
day, Cin-Q Plaintiffs filed an identical Motion to Transfer Related Case under Local
Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel in the CinQ Action seeking the same relief, while BTL filed a Motion for a Stay or, in the
Alternative, an Extension of Time in the Cin-Q Action seeking a stay of the Cin-Q

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Action or, alternatively, an extension of time to respond to the Motion for Class
Certification pending in the Cin-Q Action.

Cin-Q Action, (Docs. 236 & 237).

Subsequently, on June 22, 2016, TTA Plaintiffs submitted their Unopposed Motion
for Preliminary Approval of Class Action Settlement and Notice to the Class.
Technology Training II Action, (Doc. 18). Pursuant to Rule 23(e), Plaintiffs requested,
on behalf of themselves and a proposed settlement class of similarly situated persons
(the “TTA Settlement Class”), that the Court enter an order (1) preliminarily
approving the parties’ proposed class action settlement agreement (the “TTA
Settlement Agreement”) that appointed TTA Plaintiffs as class representatives and
their attorneys as class counsel; (2) approving the form of Class Notice attached to
the TTA Settlement Agreement and its dissemination to the TTA Settlement Class
by U.S. mail, website, and publication; and (3) setting dates for opt-outs, objections,
and a fairness hearing. Technology Training II Action, (Doc. 18).
Thereafter, on June 27, 2016, the undersigned conducted a status conference
in the Cin-Q Action and the Technology Training II Action.

After hearing oral

argument regarding the motions for class certification, to transfer, and to stay,
pending in both actions, the undersigned granted BTL’s request to stay the Cin-Q
Action, stayed the Cin-Q Action pending further order of the Court, and permitted the
parties in both the Cin-Q Action and the Technology Training II Action to file a
supplemental memorandum regarding the appropriateness of conducting an inquiry
into the allegations by Cin-Q Plaintiffs regarding the occurrence of a “reverse
auction” in the Technology Training II Action. In accordance with the Court’s

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directive, the parties briefed the issue of a “reverse auction” and the appropriateness
of considering the issue prior to or after preliminary approval of class certification
and the TTA Settlement. Technology Training II Action, (Docs. 29-31).
On July 8, 2016, the deadline for the briefs, Cin-Q Plaintiffs additionally
submitted their Motion to Intervene in the Technology Training II Action. Technology
Training II Action, (Doc. 28). By the motion, Cin-Q Plaintiffs sought intervention as
of right under Rule 24(a) and by permission under Rule 24(b). Though Cin-Q
Plaintiffs received permission from the Court to submit a brief as to the issue of a
reverse auction, Cin-Q Plaintiffs wanted to intervene to move to strike the class
allegations, arguing that the TTA Plaintiffs were barred by the statute of limitations
and, if necessary, to oppose the motion for preliminary or final approval. In support
of intervention, Cin-Q Plaintiffs argued that their motion was timely, they possessed
an interest related to the subject matter of the Technology Training II Action, the
disposition of the Technology Training II Action might impede or impair their ability
to protect their interests, and their interests were not adequately represented by the
parties in the Technology Training II Action. Both TTA Plaintiffs and BTL opposed
Cin-Q Plaintiffs’ request to intervene. Technology Training II Action, (Docs. 37 & 39).
After conducting further hearings on the matter, the Court issued its Order
denying Cin-Q Plaintiffs’ Motion to Transfer Related Case under Local Rule 1.04(b),
to Consolidate Cases, and Appoint Interim Class Counsel; denying Cin-Q Plaintiffs’
Motion to Intervene; and granting TTA Plaintiffs’ Motion for Preliminary Approval
of Class Action Settlement and Notice to the Class. Technology Training II Action,

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(Doc. 56). In doing so, the Court considered, at length, the issue of TTA Plaintiffs’
standing to bring the Technology Training II Action given Cin-Q Plaintiffs’ argument
that the statute of limitations barred TTA Plaintiffs’ claims. Technology Training II
Action, (Doc. 56, at 13-21). As discussed more fully therein, the Court concluded
that Cin-Q Plaintiffs’ arguments regarding the lack of standing by TTA Plaintiffs due
to the running of the statute of limitations and the inapplicability of equitable tolling
was misplaced because BTL explicitly and unequivocally waived the statute-oflimitations affirmative defense, with such waiver surviving in the event of
termination of the TTA Settlement Agreement. Technology Training II Action, (Doc.
56, at 14-15; see Doc. 18, Ex. 1, at XV.H.).
After concluding that TTA Plaintiffs established standing, the Court then
determined that TTA Plaintiffs established the requirements for class certification
under Rule 23(a). Technology Training II Action, (Doc. 56, at 21-29). Specifically,
the Court determined that TTA Plaintiffs established numerosity, commonality,
typicality, and adequacy of representation.

In discussing the adequacy-of-

representation prong, the Court concluded that TTA Plaintiffs adequately
represented the interests of the class and did not harbor any interests antagonistic to
or in substantial conflict with those of the rest of the class. Technology Training II
Action, (Doc. 56, at 24-29). With respect to the adequacy of TTA Plaintiffs’ Counsel,
Attorneys Phillip A. Bock (“Bock”), Jonathan B. Piper, and Daniel J. Cohen of the
law firm Bock Law Firm, LLC d/b/a Bock, Hatch, Lewis & Oppenheim, LLC
(“Bock Hatch”), the Court found counsel adequate to represent the interests of the

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TTA Settlement Class. Technology Training II Action, (Doc. 56, at 25-29). In making
that finding, the Court addressed the issue that arose regarding whether a conflict
existed with the representation of Bock Hatch based upon David M. Oppenheim
(“Oppenheim”) previously working for Anderson + Wanca on behalf of Cin-Q
Plaintiffs in the Cin-Q Action and then switching firms to join Bock Hatch, the firm
representing TTA Plaintiffs, while the Cin-Q Action remained pending. Technology
Training II Action, (Doc. 56, at 25-29). After conducting an evidentiary hearing and
allowing supplemental briefing on the issue, the Court concluded that no conflict
existed and Oppenheim only owed a duty to the putative class, not to Cin-Q
Plaintiffs – an issue thoroughly explored in Medical & Chiropractic Clinic, Inc., v.
Oppenheim, et al., Case No. 8:16-cv-1477-CEH-CPT (M.D. Fla. filed June 8, 2016)
(“M&C Action”), as discussed more fully below.
Having satisfied the requirements of Rule 23(a), the analysis turned to
whether TTA Plaintiffs could establish Rule 23(b)’s requirements of predominance
of common issues and superiority of the class action to other means of litigation.
Technology Training II Action, (Doc. 56, at 29-31). Upon consideration, the Court
concluded that the common issues outweighed and predominated over any
individualized issues involved in the litigation and that proceeding as a class action
provided the superior method to other methods available to fairly and efficiently
adjudicate the controversy. Having determined that preliminary certification of the
TTA Settlement Class was warranted, the Court then turned to the issue of whether
preliminary approval of the TTA Settlement Agreement was similarly warranted.

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Technology Training II Action, (Doc. 56, at 31-37). Namely, the Court was tasked
with determining whether the TTA Settlement constituted a fair, adequate, and
reasonable resolution and did not result from collusion between the parties.
Technology Training II Action, (Doc. 56, at 31-32). Upon review of the terms, the
Court found that the TTA Settlement Agreement, which provided, among other
things, a Settlement Fund up to $19.5 million and payments of up to $350 for the
first facsimile and up to $565 total for up to five facsimiles to members of the TTA
Settlement Class who submitted claims, appeared fair, adequate, and reasonable
solely for purposes of preliminary approval. Technology Training II Action, (Doc. 56,
at 33-34). Accordingly, the Court granted TTA Plaintiffs’ Motion for Preliminary
Approval of Class Action Settlement and Notice to the Class and set forth the terms
of the preliminary certification of the TTA Settlement Class, including the time for
disseminating notice to TTA Settlement Class members and the date and time for
the fairness hearing. Technology Training II Action, (Doc. 56, at 37-39, 42-52). 3
In addition to granting preliminary approval of the TTA Settlement Class,
the Court denied Cin-Q Plaintiffs’ Motion to Transfer Related Case under Local
Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel and denied
Cin-Q Plaintiffs’ Motion to Intervene. Technology Training II Action, (Doc. 56, at 3942). As discussed, the Court did not need to transfer the action because the
undersigned received the case through random assignment and then by consent to
Notably, however, TTA Plaintiffs and BTL never issued notice to the Settlement Class,
in contravention of the Court’s Order, and the Court therefore never conducted a fairness
hearing in the Technology Training II Action nor entered final approval.

3

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the undersigned’s jurisdiction by TTA Plaintiffs and BTL. Technology Training II
Action, (Doc. 56, at 39). Further, given the preliminary approval of the TTA
Settlement and appointment of TTA Plaintiffs’ Counsel as class counsel, the
considerations did not favor consolidation of the Technology Training II Action and
the Cin-Q Action and obviated the need for appointment of Addison & Howard and
Anderson + Wanca. Technology Training II Action, (Doc. 56, at 39-40).
Finally, in considering Cin-Q Plaintiffs’ Motion to Intervene, the Court
denied Cin-Q Plaintiffs’ request both for intervention as of right, pursuant to Rule
24(a), and by permission, pursuant to Rule 24(b). Technology Training II Action,
(Doc. 56, at 40-42). The Court concluded that Cin-Q Plaintiffs could assert their
objections in the normal course of the proceedings, as anticipated by Rule 23, and
that a potential incentive award to Cin-Q Plaintiffs and attorneys’ fees for their
counsel were not foreclosed, thereby negating their contention regarding the
necessity for intervention as of right. Likewise, the Court concluded that permissive
intervention was not appropriate since Cin-Q Plaintiffs could still assert their claims
and defenses in this action at the appropriate time or could opt out of the class and
continue to pursue their claims on an individual basis in the Cin-Q Action.
Given the rulings in the Technology Training II Action, the Court denied all
pending motions in the Cin-Q Action, including Cin-Q Plaintiffs’ Motion for Class
Certification. Cin-Q Action, (Docs. 207, 236, 241, 250). The Court also stayed the
Cin-Q Action pending further order of the Court.

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D.

M&C Action

Meanwhile, based on the initiation of the Technology Training II Action, M&C
initiated an action against Oppenheim and Bock Hatch, in the Circuit Court of the
13th Judicial Circuit in and for Hillsborough County, Florida, on June 1, 2016,
which Oppenheim and Bock Hatch then removed to federal court a week later. See
M&C Action, (Docs. 1 & 2). M&C asserted claims for (1) breach of fiduciary duty
against Oppenheim and Bock Hatch; and (2) aiding and abetting breach of fiduciary
duty against Bock Hatch. M&C Action, (Doc. 2). Essentially, M&C claimed that it
had an interest in being named as class representative and obtaining class
certification for the proposed class after vigorously litigating the Cin-Q Action for the
prior three years through fact discovery, class discovery, depositions, expert
discovery, dispositive motions, and mediation conferences. M&C Action, (Doc. 2,
¶¶14-15). M&C further alleged that, during the course of the proceedings in the CinQ Action through the time of his resignation from Anderson + Wanca on April 8,
2016, Oppenheim represented M&C as its attorney in the Cin-Q Action, billing at
least 80 hours on the matter; intimately involving himself in the preparation,
strategy, and participation in the two mediation conferences conducted in the CinQ Action; completing multiple settlement negotiations in the Cin-Q Action; and
operating as the primary point of contact for Cin-Q Plaintiffs with regard to the
mediation conferences in the Cin-Q Action.

M&C Action, (Doc. 2, ¶¶17-23).

According to M&C, Oppenheim became familiar with and received access to the
case strategy, discovery, analysis, and settlement strategy of Cin-Q Plaintiffs, the

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purported class, and BTL, and was granted full authority to settle on behalf of CinQ Plaintiffs.

M&C Action, (Doc. 2, ¶¶24-25).

M&C alleged that Oppenheim

prepared and submitted the mediation statements for both mediation conferences
held in the Cin-Q Action, represented Cin-Q Plaintiffs at both mediation conferences,
and held discussions with Michele Zakrewski, President of M&C, both before and
after the mediation conferences. M&C Action, (Doc. 2, ¶¶26-28, 30-33, 35). Even
though the parties to the Cin-Q Action did not reach a resolution during either of the
first two mediation conferences, M&C alleged that Oppenheim remained involved
in the matter through continued correspondence with the second mediator and
other counsel for Cin-Q Plaintiffs and continued to receive access to purportedly
privileged and confidential information regarding Cin-Q Plaintiffs and the putative
class. M&C Action, (Doc. 2, ¶¶37-40). As a result of his involvement in the Cin-Q
Action, M&C asserted that Oppenheim acted as M&C’s attorney and thus owed it
ethical and fiduciary duties. M&C Action, (Doc. 2, ¶¶41-47).
In April 2016, not long after the filing of the Motion for Class Certification
Motion in the Cin-Q Action, Oppenheim resigned from Anderson + Wanca and
joined Bock Hatch. M&C Action, (Doc. 2, ¶¶48-50). Shortly thereafter, in May 2016,
Bock Hatch filed the Technology Training I Action and then, in June 2016, filed the
Technology Training II Action asserting claims on behalf of the same putative class
members identified in the Cin-Q Action, as discussed more fully above. See M&C
Action, (Doc 2, ¶¶57-58). Based on the foregoing, M&C alleged a claim for breach
of fiduciary duty against Oppenheim, which it asserted was imputed to Bock Hatch,

19

and a claim for aiding and abetting breach of fiduciary duty against Bock Hatch.
M&C Action, (Doc. 2, ¶¶85-105). Namely, M&C alleged that Oppenheim owed
M&C an undivided duty of loyalty to represent M&C’s interests and a duty not to
represent a client with interests materially adverse to M&C, with such duties
continuing after his resignation from Anderson + Wanca, which were then imputed
to Bock Hatch. M&C Action, (Doc. 2, ¶¶87-94). Further, M&C alleged that Bock
Hatch aided and abetted the breach of fiduciary duty because Bock Hatch knew
about Oppenheim’s representation of M&C in the Cin-Q Action, and the attendant
duties attached to such representation, and substantially assisted Oppenheim’s
breach of those duties. M&C Action, (Doc. 2, ¶¶99-102).
Following the filing of the Complaint and removal in the M&C Action, M&C
filed its Amended Motion for Entry of Temporary Restraining Order and
Preliminary Injunction seeking to enjoin Oppenheim and Bock Hatch from (1)
representing any entity in a case alleging class-wide allegations substantially related
to the Cin-Q Action; (2) representing TTA Plaintiffs in any actions substantially
related to the Cin-Q Action; (3) engaging in settlement negotiations with BTL, or
reaching a settlement, in any matter substantially related to the Cin-Q Action; and
(4) using, disclosing, or relying upon confidential information Oppenheim gained
while representing M&C, including information protected by the attorney-client
privilege or mediation privilege. M&C Action, (Doc. 5). After conducting an
evidentiary hearing in July 2016 regarding the request for a preliminary injunction,
United States District Judge Charlene E. Honeywell (“Judge Honeywell”) denied

20

M&C’s motion for preliminary injunction in October 2016. M&C Action, (Doc. 71).
In doing so, Judge Honeywell determined that M&C could not establish a
substantial likelihood of success on the merits of either its breach-of-fiduciary-duty
claim or its aiding-and-abetting claim, could not establish a threat of irreparable
harm, could not establish that any threatened injury to M&C outweighed the harm
an injunction would cause Oppenheim or Bock Hatch, and could not establish that
an injunction would serve the public interest. M&C Action, (Doc. 71, at 5-15). Judge
Honeywell concluded that Oppenheim had a fiduciary duty to the entire class,
including M&C, but it was questionable whether M&C could demonstrate the
existence of a special fiduciary duty to M&C different from the fiduciary duty owed
to all class members. M&C Action, (Doc. 71, at 7). Judge Honeywell further found,
since neither Oppenheim nor Bock Hatch were pursuing relief for the class that was
“materially adverse” to the interests of the other class members, including M&C,
that M&C was unlikely to establish a breach of any duty owed by Oppenheim.
M&C Action, (Doc. 71, at 9). Then, Judge Honeywell determined that M&C failed
to demonstrate irreparable harm because, among other things, any issue related to
an alleged “reverse auction” could be remedied through the normal course of
litigation, namely, the approval process of the TTA Settlement. M&C Action, (Doc.
71, at 14). Given those findings, Judge Honeywell determined that the balance of
harm weighed against entry of an injunction, since M&C demonstrated no
irreparable harm it would suffer, and that entry of an injunction would not serve the
public interest as no materially adverse interest existed among the parties in the

21

M&C Action, the Cin-Q Action, and the Technology Training II Action. M&C Action,
(Doc. 71, at 15).
Notably, though, given the issues raised during the pursuit of the preliminary
injunction in the M&C Action, the undersigned conducted an independent
evidentiary hearing in the Technology Training II Action in October 2016 to also
consider any potential conflict of interest related to Oppenheim’s participation in
the Cin-Q Action on behalf of Cin-Q Plaintiffs and the proposed class, given his
subsequent departure from employment with Anderson + Wanca to employment
with Bock Hatch, currently representing TTA Plaintiffs in the Technology Training II
Action. Both Oppenheim and Bock provided testimony during the hearing, while
Cin-Q Plaintiffs were not permitted to participate in the evidentiary hearing in the
Technology Training II Action.
Subsequently, in the M&C Action, M&C sought partial summary judgment
on its claims solely as to the issue of liability, and Oppenheim and Bock Hatch
sought summary judgment on M&C’s claims in full. M&C Action, (Docs. 142 &
144). Upon consideration, Judge Honeywell denied M&C’s Motion for Partial
Summary Judgment and granted Oppenheim and Bock Hatch’s Motion for
Summary Judgment, finding that M&C could not establish the existence of a
fiduciary duty owed to it individually, could not establish that Oppenheim or Bock
Hatch breached any fiduciary duty owed to M&C to the extent that one existed,
and could not establish any damages suffered as a result of the purported breach,
and, further, given the lack of a breach of fiduciary duty on the part of Oppenheim,

22

M&C could not establish a claim for aiding and abetting such breach by Bock
Hatch. M&C Action, (Doc. 221). With respect to the alleged fiduciary duty, Judge
Honeywell remained unpersuaded that any fiduciary duty existed with respect to
M&C individually or that the Florida Rules of Professional Conduct provided the
standard of care in a breach of fiduciary duty case involving class action litigation.
M&C Action, (Doc. 221, at 13-20). Even assuming, arguendo, that a fiduciary duty
existed to M&C individually under the Florida Rules of Professional Conduct,
Judge Honeywell concluded that M&C could not establish that any actions taken
by Oppenheim or Bock Hatch constituted a breach because M&C’s interests were
not materially adverse 4 to that of TTA Plaintiffs’ interests for purposes of the Florida
Rules and Oppenheim did not disclose any confidential or mediation-privileged
information 5 related to M&C individually with Bock Hatch. M&C Action, (Doc.
221, at 20-24).

Finally, Judge Honeywell determined that M&C suffered no

damages as a result of the purported breach of the fiduciary duty because the
decision to move to intervene in the Technology Training II Action invoked questions
pertaining to the class, not to M&C individually, and because “conflicts between
class members and/or class representatives in class action litigation is anticipated,
and procedures, such as those employed by Cin-Q plaintiffs in their Motion to
Intervene, are in place to address such conflicts.” M&C Action, (Doc. 221, at 24-25).

See Florida Bar Rule 4-1.10(b), which states: “When a lawyer becomes associated with a
firm, the firm may not knowingly represent a person in the same or a substantially related
matter in which that lawyer, or a firm with which the lawyer was associated, had
previously represented a client whose interests are materially adverse to that person ….”
5
See Florida Bar Rules 4-1.6, 4-1.9, and 4-8.4.
4

23

On August 31, 2018, M&C appealed Judge Honeywell’s Order to the United
States Court of Appeals for the Eleventh Circuit (the “Eleventh Circuit”). See M&C
Action, (Doc. 225). At the time, given the pending appeal relating to whether
Oppenheim or Bock Hatch breached any fiduciary duties or aided and abetted such
breach, the undersigned conducted a hearing in the Technology Training II Action to
address whether the matters pending in that action should be stayed pending a
resolution by the Eleventh Circuit of the appeal in the M&C Action. TTA Plaintiffs,
BTL, and Cin-Q Plaintiffs all indicated that the resolution of the appeal in the M&C
Action would have no bearing on the outcome of the Technology Training II Action,
so the Technology Training II Action proceeded during the pendency of the appeal in
the M&C Action.
Subsequently, the Eleventh Circuit affirmed Judge Honeywell’s Order. Med.
& Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983 (11th Cir. 2020). Primarily, the
Eleventh Circuit concluded that (1) neither Oppenheim nor Bock Hatch owed a
fiduciary duty to M&C, one of the class representatives in the putative class action,
distinct from the duty owed to the class; and (2) M&C failed to establish it suffered
damage resulting from any alleged breach of fiduciary duty owed to it by
Oppenheim or Bock Hatch, and, thus, neither were liable for a purported breach.
Id. at 985-94. Accordingly, the M&C Action formally concluded on December 31,
2020 with the issuance of the Eleventh Circuit’s mandate confirming the affirmance
of Judge Honeywell’s Order. M&C Action, (Doc. 242).

24

E.

The Eleventh Circuit Appeal in Technology Training II Action

During the pendency of the M&C Action, Cin-Q Plaintiffs also submitted an
appeal to the Eleventh Circuit (the “TTA Eleventh Circuit Appeal”) regarding the
denial of their request to intervene in the Technology Training II Action. Technology
Training II Action, (Docs. 28, 56, 58); see Tech. Training Assocs., Inc. v. Buccaneers Ltd.
P’ship, 874 F.3d 692 (11th Cir. 2017). On appeal, the Eleventh Circuit considered
whether this Court erred in denying Cin-Q Plaintiffs’ request to intervene as of right
under Rule 24(a)(2) and declined to address whether the Court erred in denying CinQ Plaintiffs’ request for permissive intervention under Rule 24(b)(2). The sole issue
presented by Cin-Q Plaintiffs to the Eleventh Circuit on appeal involved this Court’s
denial of intervention. Indeed, in their appellate brief, Cin-Q Plaintiffs framed the
issue as follows:
In this appeal, No. 17-11710, Cin-Q Plaintiffs appeal solely from the
denial of their motion to intervene, and do not attack the terms of the
TTA settlement. Although Cin-Q Plaintiffs maintain the TTA
settlement is not fair, adequate, or reasonable, this appeal is limited to
reviewing the district court’s denial of intervention as of right under a
de novo standard, and reviewing the denial of permissive intervention
for abuse of discretion.
***
But this is not an appeal from a final approval order, and this Court
need not consider whether the TTA settlement is appropriate at this
time. The Court may never need to decide the propriety of the TTA
settlement if it reverses the district court’s denial of intervention in this
appeal, allowing Cin-Q Plaintiffs to intervene to protect their interests
as the true representatives of the class.
Technology Training II Action, (Doc. 141, Ex. 2) (emphasis in original). In their reply

25

brief on appeal, Cin-Q Plaintiffs also indicated that adequacy of representation under
Rule 23(a)(4) was not at issue, but rather, the only issue on appeal involved whether
Cin-Q Plaintiffs’ interests were adequately represented by the TTA Plaintiffs and
BTL under Rule 24(a)(2), arguing:
Here, TTA Plaintiffs and [BTL] are equivocating between “adequacy”
of the existing parties for purposes of Rule 24(a)(2) intervention, with
“adequacy” of representation for purposes of Rule 23(a)(4). The
adequacy of TTA Plaintiffs for Rule 23 purposes has not yet been
litigated, since there has been no discovery and almost nothing is
known about them, aside from Mr. Bock’s testimony that he contacted
them to ask if they were interested in acting as plaintiffs after finding
their fax numbers in the materials attached to Cin-Q Plaintiffs’ motion
for class certification. (A916-17, Hr’g Tr. at 15-16).
The standard for intervention, on the other hand, is merely whether
the existing parties “may be” inadequate, a showing that “should be
treated as minimal.” Meek v. Metro. Dade Cty., Fla., 985 F.2d 1471,
1478 (11th Cir. 1993). Cin-Q Plaintiffs do not have the burden of
demonstrating TTA Plaintiffs are inadequate class representatives at
this stage in a Rule 23(a)(4) analysis, and Cin-Q Plaintiffs are not, as
TTA Plaintiffs claim, “demand[ing] full resolution of Plaintiffs’
adequacy” for purposes of class certification on their motion to
intervene. (TTA Pls.’ Br. at 26). What they are demanding is a
decision on the Rule 24(a)(2) question of whether their interests “may
be” inadequately represented by the existing parties for purposes of the
minimal intervention standard, which is plainly the case.
Technology Training II Action, (Doc. 141, Ex. 2).
Given the issue presented, the Eleventh Circuit considered whether this
Court erred in denying Cin-Q Plaintiffs’ request to intervene in the Technology
Training II Action. As the Eleventh Circuit indicated, parties seeking to intervene
under Rule 24(a)(2) must demonstrate that (1) their request to intervene is timely;
(2) they have an interest relating to the property or transaction which is the subject

26

of the action; (3) they are so situated that disposition of the action, as a practical
matter, may impede or impair their ability to protect that interest; and (4) their
interest is represented inadequately by the existing parties to the suit. Tech. Training
Assocs., 874 F.3d at 695-96 (citing Stone v. First Union Corp., 371 F.3d 1305, 1308-09
(11th Cir. 2004)). As to the first two prongs, the Eleventh Circuit concluded that
Cin-Q Plaintiffs satisfied those prongs, since the request to intervene was timely and
since, as class members, they would be bound by the terms of the TTA Settlement
if approved and judgment was then entered. Tech. Training Assocs., 874 F.3d at 696
(citation omitted).
In considering the third prong, the Eleventh Circuit determined that Cin-Q
Plaintiffs satisfied that prong by demonstrating a risk that they would be bound by
an unsatisfactory class action settlement.

Id. at 696-97.

In making that

determination, the Eleventh Circuit disagreed with this Court’s finding that Rule
23’s procedural protections provided a basis for concluding that the disposition of
the Technology Training II Action would not impede or impair Cin-Q Plaintiffs’ ability
to protect their interests under Rule 24(a)(2)’s third prong. Id. at 695-97. As part of
that determination, the Eleventh Circuit considered BTL’s reliance upon the
decision in Grilli v. Metropolitan Life Insurance Co., 78 F.3d 1533 (11th Cir. 1996),
and, in a footnote, the Eleventh Circuit indicated that the Grilli holding did not
extend to cases like the Technology Training II Action, where the facts of the case
demonstrated that “the existing parties do not adequately represent the movants’
interest.” Tech. Training Assocs., 874 F.3d at 696 n.3 (emphasis in original).

27

With respect to the fourth prong, the Eleventh Circuit’s analysis started with
the presumption that the TTA Plaintiffs’ representation was adequate in pursuing
the same general objective – vindicating the rights of the class under the TCPA. Id.
at 697. As the Eleventh Circuit noted, the presumption is weak and merely requires
the proposed intervenors to present some evidence to the contrary. Id. Based on
the record before it, the Eleventh Circuit concluded that Cin-Q Plaintiffs rebutted
the weak presumption that TTA Plaintiffs adequately represented Cin-Q Plaintiffs’
interests by presenting evidence that TTA Plaintiffs’ Counsel engaged in a
“Machiavellian” plan to undercut Cin-Q Plaintiffs’ negotiating position. Id. In
support of its conclusion, the Eleventh Circuit stated:
Because the movants can rebut the presumption, we return[ ] to the
general rule that adequate representation exists if no collusion is
shown between the representative and an opposing party, if the
representative does not have or represent an interest adverse to the
proposed interven[o]r, and if the representative does not fail in
fulfillment of his duty. Showing any one of these factors is not
difficult. The requirement of the Rule is satisfied if the applicant shows
that representation of his interest may be inadequate; and the burden
of making that showing should be treated as minimal.
The movants have met the minimal burden of showing that plaintiffs’
representation of their interests may be inadequate. As we have
explained, a representative party’s greater willingness to compromise
can impede [it] from adequately representing the interests of a
nonparty. That is the case here. The plaintiffs have a greater incentive
to settle because their claims may be barred by the statute of limitations
if they cannot secure a waiver from Buccaneers, while the movants
have no statute of limitations issues. Although the parties fiercely
contest whether the plaintiffs’ claims are actually time barred, the risk
that they could be gives the plaintiffs a greater incentive to settle as
compared to the movants. Which is evidenced by the plaintiffs’ getting
a waiver of the statute of limitations as part of the settlement.
More broadly, the record appears to show that the plaintiffs’ counsel,
28

Bock Hatch, deliberately underbid the movants in an effort to collect
attorney’s fees while doing a fraction of the work that the movants’
counsel did. If, as it appears, Bock Hatch was indeed motivated by a
desire to grab attorney’s fees instead of a desire to secure the best
settlement possible for the class, it violated its ethical duty to the class.
It is plain from the record that during the negotiations the interests of
the named plaintiffs and of Bock Hatch were aligned with those of
Buccaneers and adverse to the movants’ interests. Given that, the
plaintiffs cannot be expected to adequately represent the movants’
interests. The movants satisfied Rule 24(a)(2)’s fourth prong.
Id. at 697-98 (internal citations and quotation marks omitted; emphasis and
alterations in original). Based on its conclusion, the Eleventh Circuit remanded the
case back to this Court with instructions to grant Cin-Q Plaintiffs’ motion to
intervene as of right. Id. at 698. The Eleventh Circuit provided no other instructions
for this Court upon remand.
F.

Renewed Motion to Decertify Settlement Class, Vacate
Preliminary Approval Order, and Strike Class Allegations in
the Technology Training II Action

Following issuance of the Eleventh Circuit’s Mandate on the TTA Eleventh
Circuit Appeal, Technology Training II Action (Doc. 77), the Court conducted a status
conference, at which the Court addressed the procedural process moving forward,
given the Eleventh Circuit’s decision. During the status conference, Cin-Q Plaintiffs
orally moved to certify the class in the Cin-Q Action and to appoint Anderson +
Wanca and Addison & Howard as class counsel. After consideration, the Court
determined that vacating the portion of the prior Order denying the request to
intervene was appropriate but would take under advisement whether the rest of the
Order should be vacated, specifically the request to vacate the preliminary approval

29

of the TTA Settlement and class certification. Additionally, the Court denied CinQ Plaintiffs’ oral motions and directed the parties to provide a scheduling plan for
conducting discovery, filing additional briefing, and conducting an evidentiary
hearing and any subsequent status conferences.
Following several hearings and discovery disputes, Cin-Q Plaintiffs moved to
dismiss the Technology Training II Action or, alternatively, to decertify the TTA
Settlement Class, vacate preliminary approval of the TTA Settlement, and strike
TTA Plaintiffs’ class allegations. Technology Training II Action, (Doc. 131). In doing
so, Cin-Q Plaintiffs set forth several arguments. Initially, they argued that China
Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2019) (“China Agritech”) required dismissal or
decertifying of the TTA Settlement Class, vacating of the preliminary approval of
the TTA Settlement, and striking of the class allegations in this action, as China
Agritech did not permit the maintenance of a class action after the expiration of the
statute of limitations, regardless of whether BTL waived a statute of limitations
defense. Alternatively, Cin-Q Plaintiffs argued that the Court should decertify the
TTA Settlement Class, vacate preliminary approval, and strike the class allegations
based upon the findings in the TTA Eleventh Circuit Appeal. Mainly, Cin-Q
Plaintiffs asserted that the findings in the TTA Eleventh Circuit Appeal dictated that
TTA Plaintiffs were inadequate class representatives and that TTA Plaintiffs’
Counsel was inadequate class counsel.
BTL and TTA Plaintiffs each responded in opposition. Technology Training
II Action, (Docs. 141 & 148). BTL argued that China Agritech did not require the

30

dismissal of the Technology Training II Action or the striking of the class allegations.
Technology Training II Action, (Doc. 148). BTL further asserted that its waiver of the
statute of limitations for all purposes, which survived termination of the TTA
Settlement, demonstrated that no basis existed for striking the class allegations,
especially since the waiver did not form an integral term of the TTA Settlement but
rather a procedural mechanism for presentation of the TTA Settlement to the Court
rather than intervention in the Cin-Q Action, which it contended remained a viable
option. In addition, BTL asserted that the TTA Eleventh Circuit Appeal did not
provide a basis for the relief sought by Cin-Q Plaintiffs since the law-of-the-case
doctrine applied only to issues within the scope of the appeal, the Eleventh Circuit
did not consider the adequacy of TTA Plaintiffs and TTA Plaintiffs’ Counsel under
Rule 23, and the record before the Eleventh Circuit was limited in scope. To that
end, BTL also argued that the communications produced in the Technology Training
II Action relating to the TTA Settlement demonstrated that TTA Plaintiffs were not
disarmed during negotiations.

Finally, BTL asserted that Cin-Q Plaintiffs’

arguments regarding vacating the preliminary approval of the TTA Settlement were
premature and not grounded in fact.
TTA Plaintiffs set forth similar arguments. Technology Training II Action,
(Doc. 141). Essentially, TTA Plaintiffs argued that China Agritech did not prevent
TTA Plaintiffs from maintaining a concurrent class action and that the decision in
the TTA Eleventh Circuit Appeal did not support or require decertification.
Additionally, TTA Plaintiffs contended that Cin-Q Plaintiffs’ objections to the TTA

31

Settlement would fail, TTA Plaintiffs’ Counsel adequately represented the interests
of the absent class throughout its negotiations with BTL, and Cin-Q Plaintiffs’
negotiations focused on attorneys’ fees to the detriment of the class.
In reply, Cin-Q Plaintiffs argued that the attempts to distinguish China Agritech
from the facts of the Technology Training II Action failed such that the Technology
Training II Action could not be maintained as a class action. Technology Training II
Action, (Doc. 154). Cin-Q Plaintiffs further asserted that the attempts to minimize
the findings by the Eleventh Circuit failed, meaning TTA Plaintiffs and TTA
Plaintiffs’ Counsel could not be permitted to represent a class. Finally, Cin-Q
Plaintiffs argued that the settlement negotiations in the Cin-Q Action were irrelevant
and, to the extent the Court found the Cin-Q Action settlement negotiations relevant,
the settlement negotiations established that Cin-Q Plaintiffs’ Counsel acted
appropriately and in the interests of the class, while the Technology Training II Action
settlement negotiations demonstrated that TTA Plaintiffs maintained no leverage to
settle, thus leading to poor settlement terms.
Upon consideration of the Motion to Decertify Settlement Class, Vacate
Preliminary Approval Order, and Strike Class Allegations, the Court granted the
motion. Technology Training II Action, (Doc. 169). Particularly, the Court vacated
the Preliminary Approval Order, decertified the TTA Settlement Class, struck TTA
Plaintiffs’ class claims in the Technology Training II Action, and stayed the matter
pending a status conference. As explained more fully therein, though the Court did
not read China Agritech to prohibit a defendant from waiving its statute of limitations

32

defense or allowing a plaintiff to bring class claims on that basis, the Court
ultimately concluded that, given the findings set forth in the TTA Eleventh Circuit
Appeal, the waiver of the statute of limitations defense provided the downfall of the
class claims in the Technology Training II Action because it rendered the TTA
Plaintiffs’ interests antagonistic to or in substantial conflict with the interests of the
Cin-Q Plaintiffs and the rest of the class and instead aligned the interests of the TTA
Plaintiffs and BTL, thus precluding maintenance of a class action and approval of
a class settlement in the Technology Training II Action.
Given those findings, the Court conducted an in-person status conference on
November 19, 2019 to address the status of the Cin-Q Action, the Technology Training
II Action, and another related action. 6 A few days prior to the status conference, the
TTA Plaintiffs moved, joined by Barewood Outlet, Inc., Thomas Savino d/b/a
WebRX Pharmacy Palace and RxPalace.com, and Meryman Environmental, Inc.
(collectively, “Intervenors”) to intervene in the Cin-Q Action and moved for a global
settlement conference in both the Cin-Q Action and the Technology Training II Action
involving the parties in the Cin-Q Action, the Technology Training II Action, and the
Stein Action. See Cin-Q Action, (Doc. 258); Technology Training II Action, (Doc. 171).
While Cin-Q Plaintiffs opposed intervention in the Cin-Q Action, BTL supported
intervention. Cin-Q Action, (Docs. 266 & 267). The Court addressed all the pending
matters and issues during the November 19, 2019 status conference, including the
See Stein, D.D.S., M.S.D, P.A., et al. v. Buccaneers Ltd. Ptnsh’p, Case No. 8:13-cv-2136-AEP
(M.D. Fla.) (the “Stein Action”).
6

33

appropriateness of intervention in the Cin-Q Action, attendance at a settlement
conference, and whether to stay or consolidate the Stein Action and the Technology
Training II Action, and took the matters under advisement. Shortly thereafter, BTL
moved to compel the record from the M&C Action to establish the inadequacy of
Cin-Q Plaintiffs as class representatives and Anderson + Wanca as class counsel in
the Cin-Q Action, which Cin-Q Plaintiffs opposed and Intervenors did not oppose.
Cin-Q Action, (Docs. 264, 270, & 271). 7
Given all the pending issues, the Court conducted a hearing on the Motion
to Intervene on January 15, 2020 and additionally addressed BTL’s Motion to
Compel Discovery and the Motion for a Global Settlement Conference during the
hearing. After consideration, the Court denied the request for a global settlement
in the Technology Training II Action, terminated all remaining deadlines, and
administratively closed that case, as the TTA Plaintiffs indicated that they would
like to reserve the ability to appeal. Technology Training II Action, (Doc. 174). The
Court consolidated the Stein Action with the Cin-Q Action and administratively closed
the Stein Action. Stein Action, (Doc. 59). Following that, the consolidated Cin-Q
Action remained the only pending action. Accordingly, the Court permitted the
intervention in the Cin-Q Action, especially given the findings regarding the
availability and requirements for intervention set forth in the TTA Eleventh Circuit

At that time, the motion to intervene remained pending in the Cin-Q Action. Given that
TTA Plaintiffs were joined by the additional potential intervenors, they will be referred to
as Intervenors from this point forward when discussing matters in the Cin-Q Action but
referred to as TTA Plaintiffs when discussing matters in the Technology Training II Action.

7

34

Appeal. The Court denied, without prejudice, BTL’s Motion to Compel Discovery
and directed the parties to meet and confer to identify the information BTL sought
to compel and any issues related thereto, with a subsequent status conference
scheduled to address any outstanding issues.

Cin-Q Action, (Doc. 280).

Additionally, during the hearing, the parties discussed the issue of appointment of
interim class counsel, specifically, the appointment of Michael C. Addison
(“Addison”), in the Cin-Q Action to facilitate any potential settlement discussions
and the progress of the case. The Court then entered a briefing schedule related to
the issues of adequacy and appointment of class counsel. Cin-Q Action, (Doc. 282).
Further, the Court granted the request for a global settlement to the extent
that the case was referred to United States Magistrate Judge Amanda Sansone
(“Judge Sansone”), with her consent, for a settlement conference, with Addison
appointed, without opposition, as Interim Lead Counsel for purposes of the
settlement conference. Cin-Q Action, (Doc. 284). Judge Sansone then scheduled the
settlement conference for April 7, 2020. Cin-Q Action, (Doc. 285). Due to the
COVID-19 pandemic, both the briefing schedule and the settlement conference
were postponed. Thereafter, starting in September 2020, Judge Sansone facilitated
settlement discussions between Cin-Q Plaintiffs and BTL that lasted through June
2021. At that time, Judge Sansone indicated that Cin-Q Plaintiffs and BTL reached
a settlement as to material terms on a class-wide basis. Based on the parties’
representation, the Court provided a deadline for submission of a motion for

35

preliminary approval of the settlement, which Cin-Q Plaintiffs timely submitted.
Cin-Q Action, (Doc. 324).
G.

Cin- Q Plaintiffs’ Unopposed Motion for Preliminary
Approval of Class Settlement and Notice to the Class in the
Cin-Q Action

Cin-Q Plaintiffs now move, unopposed, for preliminary approval of a class
action settlement and for notice to the proposed class (Doc. 324). More specifically,
pursuant to Rule 23, Cin-Q Plaintiffs request that the Court enter an order (1)
preliminarily approving the proposed class action Settlement Agreement and
Release (the “Settlement Agreement”), certifying the Settlement Class, appointing
Cin-Q Plaintiffs as Class Representatives, and appointing Addison and the law firm
of Addison Law Office, P.A., and Ross M. Good (“Good”), Glenn L. Hara
(“Hara”), and Brian J. Wanca (“Wanca”) and the law firm of Anderson + Wanca
as Class Counsel; (2) approving the form of Class Notice attached to the Settlement
Agreement and its dissemination to the class by U.S. mail and website and to
determine whether additional notice be sent by facsimile or publication; and (3)
setting dates for opt-outs, objections, and a fairness hearing. Cin-Q Action, (Doc.
324). For purposes of settlement, the parties stipulate to certification of a Settlement
Class defined as:
All persons who received or were successfully sent in 2009 or 2010 one
or more facsimile advertisements relating to tickets for Tampa Bay
Buccaneers games.
Specifically excluded from the Settlement Class are the following
Persons:

36

(i)
BTL and its respective parents, subsidiaries, divisions,
affiliates, associated entities, business units, predecessors in interest,
successors, successors in interest and representatives and each of their
respective immediate family members;
(ii)

Class Counsel; and

(iii) The judges who have presided over the Litigation and
any related cases.
Cin-Q Action, (Doc. 324, at 7-8 & Ex. 1, at III.A.). BTL continues to deny all
material allegations and liability, but, to facilitate settlement, the Settlement
Agreement provides, among other things, for a Settlement Fund up to $19,750,000
to pay valid Class Member claims, to pay incentive awards to Cin-Q Plaintiffs, to
pay Class Counsel attorneys’ fees and reasonable out-of-pocket litigation expenses,
and to pay notice and administration costs; payments of $350 to $615 (i.e., $350 for
the first facsimile; $125 for the second facsimile; $90 for the third facsimile; $25 for
the fourth facsimile; and $25 for the fifth facsimile) to Class Members who submit
a valid Claim (to be reduced pro rata if the Settlement Fund, after payment of
incentive awards, fees, expenses, and notice and administration costs, cannot
sufficiently pay the validly submitted claims); BTL’s agreement to entry of an
injunction prohibiting it from sending any further unsolicited facsimile
advertisements that do not otherwise comply with the TCPA; and potential awards
of attorneys’ fees, expenses, notice and administration costs, and incentive awards
to Cin-Q Plaintiffs, all of which shall be paid from the Settlement Fund. Cin-Q
Action, (Doc. 324, Ex. 1). Any amounts remaining in the Settlement Fund following
disbursement of all awards, attorneys’ fees, expenses, notice and administration

37

costs, and incentive awards shall revert in full to BTL within 14 days of payment of
all claims.
Cin-Q Plaintiffs and BTL agree that Class Notice should be sent by first-class
U.S. mail, postage pre-paid, to Class Members for whom mailing addresses can be
determined and by a Settlement Website. The Settlement Website will provide
information and relevant documents related to the settlement, including the
Agreement, the Class Notice, the Claim Form, and Cin-Q Plaintiffs’ motion seeking
attorneys’ fees. Cin-Q Plaintiffs and BTL agree that the Court should determine
whether additional notice should be provided by facsimile and/or by newspaper
publication, if necessary, with Cin-Q Plaintiffs favoring both additional forms of
notice and BTL opposed to either form of additional notice. Regardless of the
format, the Class Notice will include instructions regarding opting out, objecting to,
or submitting a Claim Form to the Settlement Administrator by mail or
electronically. The Claim Form must be signed under penalty of perjury and
identify the fax number or numbers on which the Class Member received faxes,
including faxes from the Tampa Bay Buccaneers, as well as the Class Member’s
contact information. Cin-Q Action, (Doc. 324, Ex. 1, Ex. A). The Claim Form must
be returned to the Settlement Administrator on or before the Claim deadline to
receive a share of the Settlement Fund and may be returned via fax, mail, or
electronically on the Settlement Website.
With respect to claims administration, BTL will retain and pay from the
Settlement Fund an independent, third-party Settlement Administrator, which the

38

parties shall agree upon, subject to Court approval, who will issue the Class Notice,
maintain the Settlement Website, receive the Claim Forms, assist Class Members
in completing and submitting forms, and issue settlement checks. To that end, BTL
has retained Epiq Class Action & Claim Solutions, Inc. (“Epiq” or “Settlement
Administrator”) as Settlement Administrator and submitted the Joint Motion for
Appointment of Third-Party Settlement Administrator (Doc. 337), which the Court
is granting in conjunction with the preliminary settlement approval. Within 10 days
of entry of this preliminary approval order, the parties will provide Epiq with the
records identifying the fax numbers to which the facsimile advertisements offering
tickets to Tampa Bay Buccaneers games were allegedly sent, which Epiq will use to
locate addresses for Class Members. No later than 30 days after entry of this
preliminary approval order, Epiq shall create the Settlement Website, named BTLTCPA-Settlement.com or, if unavailable, a name mutually agreed upon by the
parties. No later than 90 days after entry of the preliminary approval order, Epiq
will mail the Class Notice to all members of the Settlement Class whose addresses
were derived from the process described above. Epiq will reject any claim that does
not substantially comply with the instructions on the Claim Form or the terms of
the Agreement or is postmarked later than the Claim Deadline. The decision of
Epiq as to whether a Claim is valid is final and binding upon the parties, subject to
an appeal by a party or any absent Class Member, which the parties will endeavor
to resolve without Court intervention. Any disputes regarding such determination,
including as to whether a Claim is fraudulent or valid, is subject to review by the

39

Court. Prior to the fairness hearing, Epiq shall submit documentation to the Court
reflecting that it executed the Notice Program in accordance with the Settlement
Agreement and the preliminary approval order and shall include information
regarding the success rate of the Class Notice transmission, the number of accepted
and rejected Claims, the number of opt-outs and objections, and any other
information that will assist the Court in determining the efficacy of the Notice
Program.
The Settlement Agreement further provides for a Release of Claims.
Specifically, in consideration for the relief provided in the Settlement Agreement,
the Class Members will release all claims brought or that could have been brought,
as defined in the Settlement Agreement, against BTL and the other Released Parties
in this action about the advertisements sent by fax during the Class Period but,
notably, will not release claims regarding advertising faxes sent after 2010. In
addition, Class Counsel will submit motions for an attorneys’ fee award and
incentive awards prior to the fairness hearing. Class Counsel intends to seek an
award of attorneys’ fees in an amount not to exceed 25% of the Settlement Fund,
or $4,937,500, plus reasonable out-of-pocket expenses incurred, not to exceed
$250,000, to be paid from the Settlement Fund. Class counsel also intends to seek
incentive awards of $10,000 for Cin-Q and $10,000 for M&C for serving as Class
Representatives. The motion will be available on the Settlement Website for Class
Members to review.
In response to Cin-Q Plaintiffs’ motion seeking preliminary approval,

40

Intervenors argue that they should be appointed as Co-Class Representatives and
their counsel should be appointed as Co-Class Counsel. Cin-Q Action, (Doc. 325).
Intervenors argue that the Settlement Agreement represents substantially the same
settlement Intervenors proposed more than five years ago in the Technology Training
II Action, which Cin-Q Plaintiffs initially opposed as a “reverse auction.” According
to Intervenors, Class Members will receive no materially significant increase in
overall benefit under the terms of the Settlement Agreement when compared to the
TTA Settlement Agreement. Rather, Intervenors contend that, given the passage of
time, the total number of potential Class Members reached and successfully
submitting claims will be greatly reduced.

While Intervenors agree that the

settlement should be preliminarily approved so that Class Members may receive
notice and respond to the proposed settlement, Intervenors contend that several
deficiencies remain and certain revisions and clarifications should be made,
including as to the Class Notice and the Claim Form.
Cin-Q Plaintiffs submit a reply brief, asserting that no basis exists for
appointing Intervenors as Co-Class Representatives nor their counsel as Co-Class
Counsel. Cin-Q Action, (Doc. 329). First, Cin-Q Plaintiffs contend that the Court
cannot unilaterally alter the settlement terms, including the terms regarding the
appointment of Class Representatives and Class Counsel. Further, Cin-Q Plaintiffs
argue that this Court already concluded that Intervenors cannot adequately
represent the interests of the class in the Technology Training II Action based upon the
findings set forth in the TTA Eleventh Circuit Appeal, and, as such, neither

41

Intervenors nor their counsel can be, nor need to be, appointed to represent the class
in this action. Cin-Q Plaintiffs additionally contend that any comparisons between
the settlement reached in the Technology Training II Action and the Cin-Q Action are
irrelevant and inaccurate.
In turn, Intervenors submit a sur-reply brief. Cin-Q Action, (Doc. 332).
Intervenors reiterate their position that they and their counsel should be appointed
as Co-Class Representatives and Co-Class Counsel, arguing that the settlement
terms in this action are materially worse than those achieved in the Technology
Training II Action. According to Intervenors, despite offering some Class Members
modestly more money, focusing only on that benefit ignores the costs of delay
caused by Cin-Q Plaintiffs’ opposition to the Technology Training II Action settlement,
the settlement in this action requires an onerous proof of claim, and the settlement
in this action involves a weaker plan for providing notice to Class Members. They
also note that three of the Intervenors did not participate in the Technology Training
II Action, and the inclusion of Intervenors and their counsel in this action will ensure
adequate representation of the class and will achieve the ends of due process.
Given the arguments set forth by Intervenors, the Court conducted a hearing,
at which counsel for Cin-Q Plaintiffs, BTL, and Intervenors appeared and presented
argument relating to the Class Notice, the Claim Form, and proposed deadlines.
The main issue centered upon the requirement in the Claim Form for Class
Members to verify, under penalty of perjury, that the individual or entity subscribed
to a fax number during the period from July 14, 2009 through June 9, 2010, as

42

identified in the Claim Form, and that such individual or entity received a fax at
such number, “including faxes from the Tampa Bay Buccaneers” (see Doc. 324-1).
BTL indicated that such language was necessary to prevent widespread fraud due
to questions of reliability with the fax numbers contained in the Biggerstaff Report,
based on the actions of the rogue third-party fax broadcaster, FaxQom. According
to BTL, the Biggerstaff Report contains the entire universe of potential fax numbers
for purposes of identifying potential Class Members, but questions remain as to
whether the fax transmissions occurred on behalf of BTL to each of the fax numbers
identified in the Biggerstaff Report. Intervenors countered that such language was
not necessary and would in fact deter Class Members from submitting claims,
thereby resulting in a very low response rate.
After considering the issue, the Court directed the parties to submit additional
briefing addressing the indicia of reliability or unreliability of the Biggerstaff Report
to assist in determining whether the disputed language is in fact necessary to address
reliability issues with the fax numbers (Doc. 334). Subsequently, Cin-Q Plaintiffs,
BTL, and Intervenors each submitted their respective briefs (Docs. 339, 341, 342).
Essentially, Cin-Q Plaintiffs and BTL argue that the disputed language is necessary
and occurred as the result of a reasonable compromise, given the outstanding issues
regarding the reliability of the Biggerstaff Report, which included several anomalies,
including wireless numbers, false positives, numbers on the National or Florida Do
Not Call Registry, and online fax services; involved a lack of access to the basic
information typically relied upon in a TCPA case, such as fax logs; and offered

43

conclusions conflicting with the expert opinion offered by BTL (Doc. 339 & 341).
Intervenors contend that the inclusion of such language treats class members
inequitably, no battle of the experts exists, BTL’s expert bases his opinion upon
theoretical speculation as to “false positives,” the Biggerstaff Report is reliable, and
all the information in the Biggerstaff Report was known to BTL at the time of the
TTA Settlement in 2016 (Doc. 342).
II.

Legal Standard

Questions concerning class certification remain within the sound discretion
of the district court. Birmingham Steel Corp. v. Tenn. Valley Auth., 353 F.3d 1331,
1335 (11th Cir. 2003) (citations omitted). Under Rule 23, a district court should
determine by order whether to certify the action as a class action as soon as
practicable after a person sues as a class representative. Fed. R. Civ. P. 23(c)(1)(A).
Before entry of final judgment, however, a district court can alter or amend an order
granting or denying class certification. Fed. R. Civ. P. 23(c)(1)(C). Indeed, “[e]ven
after a certification order is entered, the judge remains free to modify it in the light
of subsequent developments in the litigation. For such an order, particularly during
the period before any notice is sent to members of the class, is inherently tentative.”
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (internal quotation, citation,
and footnote omitted).
III.

Discussion

As indicated, pursuant to Rule 23(e), Cin-Q Plaintiffs request on behalf of a
Settlement Class that the Court enter an order (1) preliminarily approving the

44

Settlement Agreement, certifying the Settlement Class, appointing Cin-Q Plaintiffs
as Class Representatives, and appointing Addison and the law firm of Addison Law
Office, P.A., and Good, Hara, and Wanca and the law firm of Anderson + Wanca
as Class Counsel; (2) approving the form of Class Notice attached to the Settlement
Agreement and its dissemination to the Settlement Class by U.S. mail and website
and to later determine whether additional Notice be sent by facsimile or publication;
and (3) setting dates for opt-outs, objections, and a fairness hearing. Cin-Q Action,
(Doc. 324). District courts maintain broad discretion in determining whether to
certify a class. Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569
(11th Cir. 1992) (citation omitted). Since the class action provides an exception to
the general rule that litigation be conducted by and on behalf of the individual
named parties only, to justify certification of a class, a class representative must be
a member of the class and possess the same interest and suffer the same injury as
the class members. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-49 (2011)
(citations omitted). The advocate of the class thus carries the initial burden of proof
to establish the propriety of class certification. Rutstein v. Avis Rent-A-Car Sys., Inc.,
211 F.3d 1228, 1233 (11th Cir. 2000) (citation omitted).
In determining whether class certification is appropriate, “Rule 23 establishes
the legal roadmap courts must follow[.]” Valley Drug Co. v. Geneva Pharms., Inc., 350
F.3d 1181, 1187 (11th Cir. 2003).

Rule 23(a) requires the moving party to

demonstrate that:
(1)
the class is so numerous that joinder of all members is
impracticable;
45

(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a)(1)-(4). “Failure to establish any one of these four factors and
at least one of the alternative requirements of Rule 23(b) precludes class
certification.” Valley Drug, 350 F.3d at 1188 (citation omitted); Fitzpatrick v. Gen.
Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“To satisfy Rule 23, the putative
class must meet each of the four requirements specified in 23(a), as well as at least
one of the three requirements set forth in 23(b).”) (citation omitted).
Accordingly, if a court determines that the moving party established the
numerosity, commonality, typicality, and adequacy-of-representation requirements
of Rule 23(a), the court then determines whether the moving party established the
requirements of one of three possible categories under Rule 23(b). See Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997); Little v. T-Mobile USA, Inc., 691
F.3d 1302, 1304 (11th Cir. 2012) (citations omitted).

In this instance, Cin-Q

Plaintiffs seek certification of the Settlement Class pursuant to Rule 23(b)(3). Under
Rule 23(b)(3), a class action may be maintained if the requirements of Rule 23(a)
are satisfied and if:
(3) the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy. The matters
pertinent to these findings include:
46

(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3)(A)-(D).
In determining the propriety of a class action, the question is whether the
moving party meets the requirements of Rule 23, not whether the moving party
states a cause of action or will prevail on the merits. Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 178 (1974) (citation omitted). Though a district court need not reach the
merits of a claim when considering the propriety of class certification, “this principle
should not be talismanically invoked to artificially limit a trial court’s examination
of the factors necessary to a reasoned determination of whether a plaintiff has met
her burden of establishing each of the Rule 23 class action requirements.” Love v.
Turlington, 733 F.2d 1562, 1564 (11th Cir. 1984) (internal citation and omitted).
Instead, a district court can consider the merits of the moving party’s claim at the
class certification stage to the degree necessary to determine whether the moving
party satisfied the requirements of Rule 23. Heffner v. Blue Cross and Blue Shield of
Ala., Inc., 443 F.3d 1330, 1337 (11th Cir. 2006) (citations omitted); see Dukes, 564
U.S. at 350-51 (stating that “sometimes it may be necessary for the court to probe
behind the pleadings before coming to rest on the certification question, ... and that

47

certification is proper only if the trial court is satisfied, after a rigorous analysis, that
the prerequisites of Rule 23(a) have been satisfied. ... Frequently that rigorous
analysis will entail some overlap with the merits of the plaintiff’s underlying claim.
That cannot be helped. The class determination generally involves considerations
that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of
action.”) (internal citations, internal quotations, alterations, and citations omitted).
A.

Standing

Prior to the certification of a class, and before undertaking any formal
typicality or commonality review, “the district court must determine that at least
one named class representative has Article III standing to raise each class
subclaim.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000);
see Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009) (noting that, to
certify a class action, the named plaintiffs must have standing, and the putative class
must meet all the requirements of Rule 23(a) in addition to at least one of the
requirements in Rule 23(b)). Cin-Q Plaintiffs allege that they suffered harm because
BTL’s faxes caused the loss of paper and toner consumed in the printing of BTL’s
faxes, the faxes utilized Cin-Q Plaintiffs’ fax machines such that Cin-Q Plaintiffs
could not use the fax machines during that time, the faxes violated Cin-Q Plaintiffs’
privacy interests in being left alone, and the faxes cost Cin-Q Plaintiffs’ employees
time receiving, reviewing, and routing BTL’s unauthorized faxes that would have
otherwise been spent on Cin-Q Plaintiffs’ business activities. See Cin-Q Action, (Doc.
70, ¶43). Such allegations establish a cognizable, particularized, and personal injury

48

for purposes of Article III standing. See, e.g., Palm Beach Golf Center-Boca, Inc. v. John
G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1250-53 (11th Cir. 2015); see JWD Auto. Inc.
v. DJM Advisory Grp. LLC, 218 F. Supp. 3d 1335, 1339 (M.D. Fla. 2016) (“In other
words, in this Circuit, the successful transmission of even a single unsolicited fax
causes an injury sufficiently concrete and particularized to confer standing under
Article III to assert a TCPA claim.”); C-Mart, Inc. v. Metro. Life Ins. Co., 299 F.R.D.
679, 687 (S.D. Fla. 2014) (concluding that a plaintiff established Article III standing
in a case involving TCPA violations where the plaintiff alleged that the defendants’
conduct in sending it an unsolicited fax violated its legally protected interest under
the TCPA because the TCPA confers the right to be free from certain harassing and
privacy-invading conduct). 8 Indeed, neither BTL nor the Intervenors contest Cin-Q
Plaintiffs’ standing in this action. Accordingly, Cin-Q Plaintiffs established Article
III standing.
B.

Rule 23(a)

The question now turns to whether Cin-Q Plaintiffs can establish the
requirements for class certification. As noted above, under Rule 23(a), one or more
members of a class may sue as representative parties on behalf of all members only

As discussed more fully in the instant motion, several developments regarding TCPA
claims involving faxes have occurred in the past few years both at the administrative and
district-court levels while this action remained pending. Cin-Q Action, (Doc. 324, at 5-7).
The Court does not read the administrative rulings or case law to divest this Court of
jurisdiction over the immediate claims. Rather, the changing legal landscape provides
another rationale in support of approving the settlement and avoiding litigating issues
pertaining to the use of an “online fax service” or “fax broadcaster” and the degree of
liability or culpability on behalf of BTL.
8

49

if the movant establishes the numerosity, commonality, typicality, and adequacyof-representation requirements. Fed. R. Civ. P. 23(a)(1)-(4).
i.

Numerosity

Initially, Cin-Q Plaintiffs must demonstrate that the class is so numerous that
joinder of all members would prove impracticable. Fed. R. Civ. P. 23(a)(1). To
establish numerosity, the moving party typically must demonstrate either some
evidence or a reasonable estimate of the number of purported class members. Kuehn
v. Cadle Co., Inc., 245 F.R.D. 545, 548 (M.D. Fla. 2007) (citation and quotation
omitted); cf. Vega, 564 F.3d at 1267 (noting that, while mere allegations of
numerosity are insufficient, a plaintiff need not show the precise number of
members in the class to establish numerosity). Though no fixed numerosity rule
exists, courts generally determine that less than 21 members of a proposed class is
inadequate to establish numerosity and more than 40 members of a proposed class
is adequate to establish numerosity, with numbers between varying based upon
other factors. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986);
see Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (concluding that
a district court did not abuse its discretion in finding that the numerosity
requirement had been met where a plaintiff identified at least 31 individual class
members). In determining numerosity, a district court may consider such factors as
the size of the class, the ease of identifying the class members and determining the
addresses of class members, the facility of effecting service upon class members if
joined, and the geographic dispersion of class members. Kilgo, 789 F.2d at 878.

50

Here, Cin-Q Plaintiffs contend that the numerosity requirement is satisfied, as the
case involves more than 343,000 faxes sent to more than 131,000 unique fax
numbers sent by BTL from July 2009 through June 2010. Cin-Q Action, (Doc. 324,
at 12; see also Doc. 207, at 19-20 & Ex. 4). Given the inordinately large number of
faxes and unique fax numbers, Cin-Q Plaintiffs easily establish numerosity.
ii.

Commonality

Cin-Q Plaintiffs must next establish commonality, or that there exists
questions of law or fact common to the class.

Fed. R. Civ. P. 23(a)(2).

Commonality pertains to the group characteristics of the class as a whole, whereas
typicality pertains to the individual characteristics of the named plaintiff in relation
to the class. Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001) (citation
omitted).

To meet the commonality requirement, the moving party must

demonstrate that the class action involves issues susceptible to class-wide proof.
Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (citation
omitted). Essentially, the moving party must show that the determination of the
truth or falsity of a common contention will resolve an issue that is central to the
validity of each of the claims in one stroke. Dukes, 564 U.S. at 350. Commonality
therefore requires “at least one issue whose resolution will affect all or a significant
number of the putative class members.” Williams, 568 F.3d at 1355 (citation and
quotation omitted). Notably, “Rule 23 does not require that all the questions of law
and fact raised by the dispute be common.” Cox, 784 F.2d at 1557 (citations
omitted). In this instance, common questions of fact and law exist regarding several

51

issues, including whether the faxes constitute advertisements, whether the faxes
were sent by or on behalf of BTL, and whether the faxes complied with the
regulations regarding opt-out notice.

Accordingly, Cin-Q Plaintiffs establish

commonality.
iii.

Typicality

The next requirement Cin-Q Plaintiffs must demonstrate is that of typicality.
Though the issues of commonality and typicality require separate inquiries, the
proof required for each tends to merge. Hudson v. Delta Air Lines, Inc., 90 F.3d 451,
456 (11th Cir. 1996) (citation and quotation omitted). As the Eleventh Circuit
explained, typicality involves the following:
A class may be certified only if the claims or defenses of the
representative parties are typical of the claims or defenses of the class.
The claim of a class representative is typical if the claims or defenses
of the class and the class representative arise from the same event or
pattern or practice and are based on the same legal theory. A class
representative must possess the same interest and suffer the same
injury as the class members in order to be typical under Rule 23(a)(3).
The typicality requirement may be satisfied despite substantial factual
differences when there is a strong similarity of legal theories.
Williams, 568 F.3d at 1356-57 (internal citations, internal quotations, and internal
marks omitted); see Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th
Cir. 1984) (“A sufficient nexus is established if the claims or defenses of the class
and the class representative arise from the same event or pattern or practice and are
based on the same legal theory. Typicality, however, does not require identical
claims or defenses. A factual variation will not render a class representative’s claim
atypical unless the factual position of the representative markedly differs from that

52

of other members of the class”). Cin-Q Plaintiffs satisfy the typicality requirement
because Cin-Q Plaintiffs, like each Class Member, were sent the same or a similar
fax from BTL, and each Class Member’s claim is based upon the same legal theory
and same set of facts as Cin-Q Plaintiffs’ claim during the same period. Given that
the claims of the Settlement Class and Cin-Q Plaintiffs’ claims are based on the same
pattern or practice and the same legal theory, Cin-Q Plaintiffs established typicality.
iv.

Adequacy of Representation

Finally, Cin-Q Plaintiffs must satisfy the adequacy-of-representation
requirement, which requires the representative party in a class action to fairly and
adequately protect the interests of those he or she purports to represent. Fed. R.
Civ. P. 23(a)(4); Valley Drug, 350 F.3d at 1189. The moving party must demonstrate
both (1) that the movant’s interests and that of his or her counsel are not antagonistic
to or in substantial conflict with those of the rest of the class, and (2) that the movant
and his or her counsel are generally able to adequately prosecute the action and
conduct the proposed litigation. See Busby v. JRHBW Realty, Inc., 513 F.3d 1314,
1323 (11th Cir. 2008); see Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th
Cir. 1987). Furthermore, in appointing class counsel, a district court must consider
(1) the work counsel has done in identifying or investigating potential claims in the
action; (2) counsel’s experience handling class actions, other complex litigation, and
the types of claims asserted in the action; (3) counsel’s knowledge of the applicable
law; and (4) the resources that counsel will commit to representing the class. Fed.
R. Civ. P. 23(g)(1)(A)(i)-(iv).

53

The adequacy-of-representation requirement presents the main obstacle for
purposes of preliminary approval of the settlement. Despite Intervenors’ arguments
to the contrary, however, Cin-Q Plaintiffs demonstrate that they adequately
represent the interests of the Settlement Class. Cin-Q Plaintiffs initiated the instant
action on behalf of themselves and the putative class, engaged in years of litigation
and several months of settlement discussions with BTL, entered into the Settlement
Agreement to resolve all the claims on a class-wide basis, and otherwise
demonstrated that proceeding as a class action is appropriate. Cin-Q Plaintiffs and
their counsel have already expended substantial resources representing the putative
class in this and all related matters. The Court cannot ascertain any interests on
behalf of Cin-Q Plaintiffs that are antagonistic to or in substantial conflict with those
of the rest of the putative class. Further, by reaching a class-wide settlement of the
claims in this action, Cin-Q Plaintiffs demonstrated that they are generally adequate
to prosecute the action, conduct the proposed litigation, and implement the
Settlement Agreement.

Accordingly, Cin-Q Plaintiffs satisfy the adequacy-of-

representation requirement to be appointed as Class Representatives.
With respect to Class Counsel, Cin-Q Plaintiffs seek to appoint Addison and
the law firm of Addison Law Office, P.A., and Good, Hara, and Wanca and the
law firm of Anderson + Wanca. Cin-Q Plaintiffs establish that these attorneys can
adequately represent and protect the interests of the Settlement Class and conduct
the proposed litigation given that they have litigated this and other matters over the
course of several years, already negotiated the settlement on behalf of the putative

54

class, and have extensive experience handling class action lawsuits, including class
action lawsuits involving the TCPA. As such, Cin-Q Plaintiffs demonstrate that,
considering those factors, Addison, Good, Hara, and Wanca satisfy the adequacyof-representation requirement for appointment as Class Counsel.
Notwithstanding, Intervenors contend that they should also be appointed as
Co-Class Representatives and that their counsel should also be appointed as CoClass Counsel (Doc. 325). As discussed above, in setting forth their argument in
the TTA Eleventh Circuit Appeal, Cin-Q Plaintiffs framed the issue presented as
solely whether Cin-Q Plaintiffs’ interests were adequately represented by TTA
Plaintiffs and BTL for purposes of intervention under Rule 24, while Cin-Q Plaintiffs
explicitly indicated that they did not seek to determine the adequacy of
representation under Rule 23(a)(4). Technology Training II Action, (Doc. 141, Ex. 2).
On appeal, the Eleventh Circuit squarely addressed the issue of adequacy under
Rule 24(a)(2) and found it lacking, making clear that TTA Plaintiffs and BTL
inadequately represented Cin-Q Plaintiffs’ interests for purposes of intervention as
of right under Rule 24(a)(2). Tech. Training Assocs., 874 F.3d at 696-98. Though the
Eleventh Circuit addressed only the issue of adequacy for purposes of Rule 24(a)(2),
the findings the Eleventh Circuit set forth in rendering its decision provided this
Court with guidance in considering adequacy under Rule 23(a) when considering
the request for decertification in the Technology Training II Action.
Guided by the findings from the TTA Eleventh Circuit Appeal, and after
considering the parties’ positions in the Technology Training II Action, the Court

55

found that the interests of TTA Plaintiffs were in substantial conflict with those of
Cin-Q Plaintiffs and, thus, the rest of the putative class because, unlike TTA
Plaintiffs, Cin-Q Plaintiffs and the other putative class members in the Cin-Q Action
“have no statute of limitations issue.” See Tech. Training Assocs., 874 F.3d at 697.
Indeed, the Eleventh Circuit explicitly addressed the issue in its decision, stating:
“Although the parties fiercely contest whether the plaintiffs’ claims are actually time
barred, the risk that they could be gives the plaintiffs a greater incentive to settle as
compared to the movants.” Id. (emphasis in original). In decertifying the class and
vacating the TTA Settlement in the Technology Training II Action, the Court found
the Eleventh Circuit’s observation instructive since TTA Plaintiffs in fact admitted
that they were aware of the statute of limitations issue from the outset of the
settlement negotiations with BTL, and, even though BTL and TTA Plaintiffs did
not address the issue of the waiver of the statute of limitations until late in their
settlement negotiations, that fact did not change the analysis. Namely, the timing
of the actual waiver by BTL did not bear on the issue because the issue was present
from the outset. Primarily, but for the timely initiation of the Cin-Q Action, BTL
would have no reason to waive the statute of limitations defense to settle potential
class claims with plaintiffs whose claims expired, and, likewise, but for obtaining a
statute of limitations waiver, TTA Plaintiffs would not maintain the ability to bring
class claims outside of the Cin-Q Action.
Given the unavailability of the separate class action option without a waiver
of the statute of limitations, the interests of TTA Plaintiffs and BTL were aligned.

56

See Id. at 697-98. Even on the limited record on appeal, the Eleventh Circuit
indicated that it was “plain from the record that during the negotiations the interests
of the named plaintiffs and of Bock Hatch were aligned with those of Buccaneers
and adverse to the movants’ interests.” Id. at 698. As the record in this action and
in the Technology Training II Action indicate, TTA Plaintiffs and BTL endeavored to
settle the class claims immediately following the original breakdown of the
settlement negotiations in the Cin-Q Action and the impending deadline for BTL to
respond to Cin-Q Plaintiffs’ Motion for Class Certification. See, e.g., Cin-Q Action,
(Docs. 207, 215-43).
BTL expressed frustration with the settlement process with Cin-Q Plaintiffs
and thus sought the Court’s assistance in conducting a settlement conference given
concerns BTL held with the position taken by Cin-Q Plaintiffs in the prior settlement
negotiations. See Cin-Q Action, (Doc. 215). At the same time, as the Eleventh Circuit
noted, e-mails indicated that TTA Plaintiffs’ Counsel engaged in a “Machiavellian”
plan to undercut Cin-Q Plaintiffs’ negotiating position. Tech. Training Assocs., 874
F.3d at 697. Indeed, TTA Plaintiffs’ Counsel did not approach BTL about the filing
of a new case regarding the same class claims until after the parties reached an
impasse in the Cin-Q Action, a fact that TTA Plaintiffs’ Counsel was aware of at the
time they approached BTL. Against that backdrop, both TTA Plaintiffs and BTL
possessed aligning incentives to settle outside the purview of the Cin-Q Action or, at
the very least, Cin-Q Plaintiffs. As this Court previously determined, therefore, the
interests of TTA Plaintiffs remained antagonistic to and in substantial conflict with

57

Cin-Q Plaintiffs and the rest of the putative class in the Cin-Q Action, meaning TTA
Plaintiffs could not and cannot adequately represent the class under Rule 23(a)(4).
The addition of three new parties as Intervenors along with the original TTA
Plaintiffs does not change the analysis. Neither TTA Plaintiffs individually or
Intervenors collectively nor their counsel demonstrated that they can adequately
represent the interests of the class or, further, that the addition of more class
representatives and more attorneys as class counsel will further the interests of the
Settlement Class or assist in implementing the Settlement Agreement.
What the Court finds interesting at this juncture is Intervenors’ argument that
Cin-Q Plaintiffs effectively piggybacked on their settlement and thus Intervenors and
their counsel deserve appointment as Co-Class Representatives and Co-Class
Counsel. Given the actions taken by TTA Plaintiffs and their counsel in reaching a
potential settlement in the Technology Training II Action, as already addressed by the
Eleventh Circuit, the Court fails to understand how Intervenors take umbrage at
Cin-Q Plaintiffs’ efforts in securing a settlement on behalf of the Settlement Class in
this action. Indeed, since TTA Plaintiffs and their counsel involved themselves in
the underlying dispute, innumerable accusations of misdeeds and a fair amount of
mudslinging has occurred between Intervenors’ counsel and Cin-Q Plaintiffs’
counsel, Addison excluded, taking whatever position served their interests at the
time. For example, TTA Plaintiffs forcefully opposed intervention in the Technology
Training II Action, while Cin-Q Plaintiffs vigorously sought intervention, even
appealing the issue to the Eleventh Circuit, and then succeeding on appeal. Yet,

58

TTA Plaintiffs, along with three new parties, then sought intervention in the Cin-Q
Action. When confronted with the question of intervention in the Cin-Q Action, CinQ Plaintiffs vehemently opposed such intervention despite the Eleventh Circuit’s
explicit findings in the TTA Eleventh Circuit Appeal regarding the propriety of
intervention in this context. The records in all the related matters document the
abundant issues and rifts between Intervenors’ counsel and Cin-Q Plaintiffs’ counsel.
In fact, during the hearings and in briefing all the issues, discord between Cin-Q
Plaintiffs’ counsel and TTA Plaintiff’s/Intervenor’s counsel felt palpable. Whether
such discord stems from years of opposition in class action lawsuits or from the
potential recovery in this action, the course of conduct taken did nothing to further
the interests of or serve the Settlement Class. The involvement of TTA Plaintiffs
and their counsel thus appears to have hindered the resolution process more than
assisted it, spawned several related matters, and created unnecessary roadblocks
along the way.

Cin-Q Plaintiffs and their counsel, and Addison specifically,

expended several years attempting to reach a favorable result on behalf of a putative
class and have done so, despite a variety of obstacles and issues along the way.
In sum, therefore, Cin-Q Plaintiffs demonstrated that both they and Addison,
Good, Hara, and Wanca will adequately represent the interests of the Settlement
Class.

Neither Intervenors nor their counsel need be added as Co-Class

Representatives or Co-Class Counsel to effectuate the settlement because there is
simply no need for additional representatives or counsel and, more importantly, as
the Court already made plain in the Technology Training II Action, they cannot

59

adequately represent the class under Rule 23(a)(4). Accordingly, Cin-Q Plaintiffs
established each of the Rule 23(a) factors.
C.

Rule 23(b)

Having met the requirements under Rule 23(a), Cin-Q Plaintiffs assert that
the putative class also meets the requirements under Rule 23(b)(3). More precisely,
Cin-Q Plaintiffs contend that the putative class satisfies the requirements regarding
predominance of common issues and superiority of the class action to other means
of litigation. Fed. R. Civ. P. 23(b)(3).
i.

Predominance

To satisfy the predominance requirement, the moving party must
demonstrate that the issues in the class action subject to generalized proof, and
therefore applicable to the class as a whole, predominate over the issues subject only
to individualized proof. Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005
(11th Cir. 1997) (citations omitted). “The Rule 23(b)(3) predominance inquiry tests
whether proposed classes are sufficiently cohesive to warrant adjudication by
representation.” Windsor, 521 U.S. at 623. The predominance inquiry thus focuses
upon the legal or factual questions that qualify each class member’s case as a
genuine controversy and, therefore, is a far more demanding requirement than the
commonality requirement under Rule 23(a). Jackson, 130 F.3d at 1005. Indeed,
predominance requires more than just the presence of common issues.

The

common issues must outweigh and predominate over any individualized issues
involved in the litigation. Muzuco v. Re$ubmitIt, LLC, 297 F.R.D. 504, 518 (S.D.

60

Fla. 2013).
Cin-Q Plaintiffs contend that BTL engaged in a widespread, mass fax
advertising campaign. The facts required to demonstrated liability relate to BTL’s
common course of conduct in sending the same or similar faxes to more than
131,000 fax numbers. Additionally, the legal questions of whether the faxes are
advertisements, whether BTL qualifies as the sender, whether the faxes contain the
appropriate opt-out notice, and whether BTL’s violations were willful predominate
over any issues subject only to individualized proof. Accordingly, Cin-Q Plaintiffs
established predominance.
ii.

Superiority

Cin-Q Plaintiffs must also establish that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy. Fed. R.
Civ. P. 23(b)(3). The superiority analysis focuses upon the relative advantages of
proceeding as a class action suit over any other forms of litigation that might be
realistically available to a moving party. Sacred Heart Health Sys., Inc. v. Humana Mil.
Healthcare Servs., Inc., 601 F.3d 1159, 1183-84 (11th Cir. 2010). In determining the
superiority of the class action, the court may consider (1) the class members’
interests in individually controlling the prosecution or defense of separate actions;
(2) the extent and nature of any litigation concerning the controversy already begun
by or against class members; (3) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; and (4) the likely difficulties in
managing a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D).

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Here, given the large number of purported class members, the similarity of
the claims of all class members, and the relatively small potential recovery in
individual suits, proceeding as a class action lawsuit is superior to any other forms
of litigation. Indeed, such considerations demonstrate the superiority of proceeding
as a class action and thus weigh in favor of proceeding as a class action.
Furthermore, nothing indicates that any class members maintain an interest in
individually controlling the prosecution or defense of separate actions. In fact, in
the other actions filed by potential class members, the named plaintiffs sought to
proceed as a class action rather than proceed only on their individual claims. See
Technology Training II Action; Stein Action. Moreover, handling this matter as a class
action would prove less difficult than handling hundreds of thousands of individual
lawsuits.

Lastly, this action has been pending for years in this forum, so

concentrating any remaining issues in this action provides the most effective and
efficient means for achieving final resolution. Based on these considerations,
therefore, Cin-Q Plaintiffs established that proceeding as a class action is superior to
other methods available to fairly and efficiently adjudicate this controversy.
D.

Rule 23(e)

Given that Cin-Q Plaintiffs and BTL entered into the Settlement Agreement
to settle all claims on behalf of the Settlement Class, they seek the Court’s
preliminary approval of the Class, appointment of Cin-Q Plaintiffs as Class
Representatives, appointment of Class Counsel, issuance of the Notice to the Class,
and the scheduling of a fairness hearing. Under Rule 23(e), the claims, issues, or

62

defenses of a certified class may be settled with the court’s approval, with the
following applicable procedures:
(1) The court must direct notice in a reasonable manner to all class
members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve
it only after a hearing and on finding that it is fair, reasonable, and
adequate.
(3) The parties seeking approval must file a statement identifying any
agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the
court may refuse to approve a settlement unless it affords a new
opportunity to request exclusion to individual class members who had
an earlier opportunity to request exclusion but did not do so.
(5) Any class member may object to the proposal if it requires court
approval under subdivision (e), with such objection indicating whether
it applies only to the objector, to a specific subset of the class, or to the
entire class, and also states with specificity the grounds for the
objection.
See Fed. R. Civ. P. 23(e)(1)-(5). Having established that preliminary certification of
the Settlement Class is warranted, Cin-Q Plaintiffs also established that preliminary
approval of the Settlement Agreement is similarly warranted. To approve a class
action settlement, a district court must determine that the settlement is fair,
adequate, and reasonable and is not the result of collusion between the parties.
Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) (quotation and citation
omitted); see Fresco v. Auto Data Direct, Inc., No. 03-61063-CIV, 2007 WL 2330895,
at *4 (S.D. Fla. May 14, 2007) (“At the preliminary-approval step, the Court is
required to make a preliminary determination on the fairness, reasonableness, and
adequacy of the settlement terms.”) (internal quotation and citation omitted). In
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making such determination, a district court should consider the following factors:
“(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the range
of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the
anticipated complexity, expense, and duration of litigation; (5) the opposition to the
settlement; and (6) the stage of proceedings at which the settlement was achieved.”
Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1240 (11th Cir. 2011). These factors
are neither determinative nor exhaustive, and a district court may consider such
other relevant factors as: (1) an unjustifiably burdensome claims procedure; (2)
unduly preferential treatment of the class representative; (3) the terms of settlement
in similar cases; (4) an unreasonably high award of attorney’s fees to prevailing class
counsel; and (5) impermissibly broad releases of liability. Palmer v. Dynamic Recovery
Sol., LLC, Case No. 6:15-cv-59-Orl-40KRS, 2016 WL 2348704, at *2 (M.D. Fla.
May 4, 2016).
Preliminary approval of a class settlement simply allows notice to issue to the
class and for the class members to either object or opt out of the settlement. PierreVal v. Buccaneers Ltd. P’ship., No. 8:14-CV-01182-CEH-EAJ, 2015 WL 3776918, at
*1 (M.D. Fla. June 17, 2015). Accordingly, if a proposed settlement is within the
range of possible approval, or if probable cause exists to notify the class of the
proposed settlement, such settlement should be preliminarily approved. Fresco,
2007 WL 2330895, at *4. Notably, “[a]lthough class action settlements should be
reviewed with deference to the strong judicial policy favoring settlement, the court
must not approve a settlement merely because the parties agree to its terms.”

64

Palmer, 2016 WL 2348704, at *3 (citations omitted). With respect to precertification
settlement, it is especially important since “the parties’ speedy and seamless
resolution of their dispute should prompt the court to consider whether the proposed
settlement represents a bona fide end to the adversarial process or the collusive
exploitation of the class action mechanism to the detriment of absent class
members.” Id. (citations omitted).
Cin-Q Plaintiffs assert claims for violations of the TCPA and for conversion
relating to the purported unsolicited facsimile advertisements sent by or on behalf
of BTL. Cin-Q Action, (Doc. 70). Under the TCPA, it is unlawful “to use any
telephone facsimile machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement” except within certain enumerated
circumstances, including that the unsolicited advertisement contains a proper
notice. 47 U.S.C. § 227(b)(1)(C). The TCPA provides that a person or entity may
bring a private action to enjoin a TCPA violation; to recover actual monetary loss
from such a violation, or to receive $500 in damages for each violation, whichever
is greater; or both such actions. 47 U.S.C. § 227(b)(3)(A)-(C). If a court concludes
that the defendant acted willfully or knowingly, the court, in its discretion, may
award treble damages. See 47 U.S.C. § 227(b)(3); Campbell-Ewald Co. v. Gomez, 577
U.S. 153, 156 (2016). Although BTL denies every allegation of wrongdoing,
liability, and damages, and further denies that litigation would be appropriate for
class treatment, Cin-Q Plaintiffs and BTL entered into the Settlement Agreement to
resolve all claims to avoid the expense, inconvenience, and inherent risk involved

65

with litigation as well as to prevent the continued disruption of BTL’s business
operations. Cin-Q Action, (Doc. 324, at 7).
In effecting this resolution, the Settlement Agreement provides, among other
things, for a Settlement Fund up to $19,750,000; payments of up to $350 for the first
facsimile and up to $615 total for up to five facsimiles to Settlement Class Members
who submit claims, to be reduced on a pro rata basis if, after payment of fees,
expenses, and incentive awards, the Settlement Fund proves insufficient to fully pay
the valid claims submitted; BTL’s agreement not to send any further unsolicited
facsimile advertisements in violation of the TCPA; payment of notice and
administration costs; potential incentive awards to Cin-Q Plaintiffs; and a potential
award of attorneys’ fees and expenses to Class Counsel, not to exceed 25% of the
Settlement Fund.

Cin-Q Action, (Doc. 324, Ex. 1).

Solely for purposes of

preliminary approval, such terms appear fair, adequate, and reasonable. Namely,
the settlement is either on par with or exceeds prior TCPA settlements, both in the
total amount in the Settlement Fund and in the amount awarded to each Class
Member. See, e.g., Family Med. Pharmacy, LLC v. Impax Lab., Inc., CIVIL ACTION
17-0053-WS-MU, 2017 WL 4366740 (S.D. Ala. Sept. 29, 2017) (preliminarily
approving a TCPA settlement in case involving junk fax transmissions that included
$4,815,700 in a settlement fund, to be distributed on a pro rata basis to class members
making claims, with such distributions not to exceed $500 per compensable fax
transmission; $75,000 toward costs of notice and claims administration; attorneys’
fees and litigation expenses of up to one-third of the settlement fund; and incentive

66

awards); Michel v. WM Healthcare Sol., Inc., No. 1:10-cv-638, 2014 WL 497031 (S.D.
Ohio Feb. 7, 2014) (granting final approval for a TCPA fax class settlement
involving approximately 400,000 class members that included $4,375,000 in a
settlement fund with class members receiving a pro rata payment up to $1,500 after
payment of fees, expenses, costs of notice, and incentive fees, which the court
reduced to payment of 15% of the settlement fund in attorney’s fees rather than onethird of the settlement fund and $3,000 each as incentive awards rather than the
$10,000 requested).
With respect to the possible request for attorneys’ fees and expenses, such
request falls within the parameters of reasonable awards in the class action context.
Attorney’s fees awarded from a common fund should “‘be based upon a reasonable
percentage of the fund established for the benefit of the class.’” Faught, 668 F.3d at
1242 (quoting Camden I Condo Assoc., Inc. v. Dunkle, 946 F.2d 768, 774 (11th Cir.
1991)). In this context, courts generally consider fee requests reasonable where the
requests fall between 20% to 25% of the settlement. Faught, 668 F.3d at 1242
(citation omitted); see Nelson v. Mead Johnson & Johnson Co., 484 F. App’x 429, 435
(11th Cir. 2012) (finding reasonable a district court’s fee award that constituted 25%
of a common fund and noting that it is well-settled in the Eleventh Circuit that 25%
is generally recognized as a reasonable fee award in common fund cases); 9 Smith v.
KFORCE Inc., Case No. 8:19-cv-02068-CEH-CPT, 2020 WL 7250603, at *2 (M.D.

Unpublished opinions are not considered binding precedent but may be cited as
persuasive authority. 11th Cir. R. 36-2.

9

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Fla. Dec. 9, 2020) (finding that one-third of a common fund, for which the class
counsel would seek approval, was within the reasonable range for attorney’s fees
and costs upon consideration of preliminary approval of a class action settlement);
James v. JPMorgan Chase Bank, N.A., Case No. 8:15-cv-2424-T-23JSS, 2017 WL
2472499, at *2 (M.D. Fla. June 5, 2017) (finding a request for an attorneys’ fees
award equal to 30% of the settlement fund to be reasonable in granting final
approval of a class action settlement in a case involving TCPA claims). As noted,
Cin-Q Plaintiffs intend to seek an award of attorneys’ fees in an amount not to
exceed 25% of the Settlement Fund, or $4,937,500, plus reasonable out-of-pocket
expenses incurred, not to exceed $250,000, to be paid from the Settlement Fund.
Cin-Q Action, (Doc. 324, at 11 & Ex. 1, at II.A. & VI.). The requested amount for
potential reimbursement of attorneys’ fees and expenses is thus fair, adequate, and
reasonable for purposes of preliminary approval.
The Settlement Agreement also addresses potential incentive awards.
Specifically, the Settlement Agreement indicates that Cin-Q Plaintiffs and BTL will
request incentive awards in the amount of $10,000 for Cin-Q and in the amount of
$10,000 for M&C. Cin-Q Action, (Doc. 324, Ex. 1, at VI.B.). Recently, the Eleventh
Circuit determined that “incentive awards” for class representatives equate to part
salary and part bounty, which is prohibited by prior Supreme Court precedent.
Johnson v. NPAS Sol., LLC, 975 F.3d 1244, 1255-61 (11th Cir. 2020). While the
Court appreciates that this action began pending well before the Eleventh Circuit’s
recent ruling, the Court must operate within the confines of the law as it stands

68

today. Accordingly, while the parties may present their arguments as to why they
believe the Court should still provide incentive awards to Cin-Q Plaintiffs, their
efforts will likely prove an exercise in futility.
With respect to the other factors, Cin-Q Plaintiffs and BTL agree that they
each seek to avoid the complexity, expense, and duration of litigation anticipated
in this action. As evidenced by the lengthy and detailed procedural history in this
and the other related matters, detailed more fully above, the parties can reasonably
anticipate similar procedural hurdles, a lengthy duration, and great expense to both
parties if forced to litigate the issues present in this action. The Class Members also
benefit from the potential receipt of a monetary payment without the expense and
risks associated with litigation, including the risk of a smaller or no award.
Furthermore, uncertainty remains on both sides as to whether the claims upon
which Cin-Q Plaintiffs seek to proceed are likely to succeed at trial, especially given
notable changes in the legal landscape since the inception of this action. Cin-Q
Plaintiffs and BTL possess colorable arguments in support of and opposition to the
claims set forth herein, which makes settlement an attractive option. With respect
to the stage at which the Settlement Agreement was reached, the parties engaged in
several years of litigation in this and the other related matters, addressed similar
issues at the administrative level while proceeding with litigation at the trial and
appellate levels, and engaged in lengthy settlement discussions. The parties did not
blindly enter negotiations armed with little to no information nor settled the case
prematurely. Rather, each side entered the negotiations with a full understanding

69

of the issues and potential pitfalls related to litigation of the claims and engaged in
arm’s-length negotiations before a United States Magistrate Judge for several
months. The resolution reached by Cin-Q Plaintiffs and BTL after years of litigation
and months of settlement negotiations therefore weighs in favor of preliminary
approval. Moreover, the Settlement Agreement does not delineate an unjustifiably
burdensome claims procedure, unduly preferential treatment of the Class
Representatives, or impermissibly broad releases of liability. Based on those factors,
preliminary approval appears fair, reasonable, and adequate at this stage.
Regarding the factor pertaining to the opposition to the settlement, no such
opposition appears to exist. In fact, Intervenors agree that a class settlement should
go forward, but Intervenors contend that they should be involved as Co-Class
Representatives and that their counsel should be appointed as Co-Class Counsel
while also suggesting minor adjustments to the Class Notice and Claim Form.
Intervenors argue that the settlement in this action is not materially better than the
proposed settlement reached between TTA Plaintiffs and BTL in the Technology
Training II Action, so Intervenors and their counsel should be allowed to participate.
Intervenors fail to recognize, however, that the settlement reached in the Technology
Training II Action is a nullity at this point with no bearing on these proceedings. If
anything, given the Eleventh Circuit’s clear expression of disdain for how TTA
Plaintiffs and their counsel obtained the settlement in Technology Training II Action
and otherwise conducted themselves therein, reference to the prior settlement and
their efforts to achieve that settlement does nothing to further Intervenors’ or their

70

counsel’s position in this action.
The settlement in this action shall preliminarily proceed without the need for
Intervenors and their counsel to be named as Co-Class Representatives or Co-Class
Counsel. Indeed, Intervenors agreed that Addison should be appointed as Interim
Class Counsel, and he obtained a settlement after months of negotiation facilitated
by Judge Sansone. Though the Court appreciates Intervenors’ arguments and
position, it does not find them persuasive. As a result, Intervenors and their counsel
may continue to participate in this action by, for example, asserting any further
objections at the fairness hearing and moving for an award of attorneys’ fees at the
same time as Cin-Q Plaintiffs.
After consideration, therefore, the undersigned concludes that the Settlement
Agreement represents a bona fide end to the adversarial process rather than the
collusive exploitation of the class action mechanism to the detriment of absent class
members. The settlement amount falls within the range of possible approval and,
based on the foregoing, is preliminarily approved. In doing so, the Court
(1) preliminarily approves the following Settlement Class:
All persons who received or were successfully sent in
2009 or 2010 one or more facsimile advertisements
relating to tickets for Tampa Bay Buccaneers games.
Specifically excluded from the Settlement Class are the
following Persons:
(i)
BTL and its respective parents, subsidiaries,
divisions, affiliates, associated entities, business units,
predecessors in interest, successors, successors in interest
and representatives and each of their respective
immediate family members;
71

(ii)

Class Counsel; and

(iii) The judges who have presided over the
Litigation and any related cases.
(2) preliminarily appoints Cin-Q and M & C as Class Representatives;
and
(3) preliminarily appoints Addison and the law firm of Addison Law
Office, P.A., and Good, Hara, and Wanca and the law firm of
Anderson + Wanca as Class Counsel.
i.

Notice and Fairness Hearing

Following preliminary approval of a settlement, Rule 23 dictates that the
court “direct notice in a reasonable manner to all class members who would be
bound by the proposal.” Fed. R. Civ. P. 23(e)(1). Where a class is certified under
Rule 23(b)(3), albeit preliminarily for our purposes, “the court must direct to class
members the best notice that is practicable under the circumstances, including
individual notice to all class members who can be identified through reasonable
effort.” Fed. R. Civ. P. 23(c)(2)(B). The notice must clearly and concisely include
the following information in plain, easily understood language:
(1) the nature of the action;
(2) the definition of the class certified;
(3) the class claims, issues, or defenses;
(4) that a class member may enter an appearance through an attorney
if the member so desires;
(5) that the court will exclude from the class any member who requests
exclusion;
(6) the time and manner for requesting exclusion; and
72

(7) the binding effect of a class judgment on members under Rule
23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B)(i)-(vii). Upon review, the Notice provided by Cin-Q
Plaintiffs, attached as Exhibit B to the Settlement Agreement, satisfies the
requirements of Rule 23(c)(2)(B) and is incorporated herein. Cin-Q Action, (Doc.
324, Ex. 1, Ex. B).
Intervenors do not argue that the Notice is inadequate but rather take issue
with the proposed means of providing Notice to Class Members and with the Claim
Form as currently drafted (Doc. 325). 10 Mainly, Intervenors argue that the proposed
means of providing notice outlined in the Settlement Agreement is deficient, as they
originally negotiated publication notice by print in a Tampa newspaper and
additionally through internet banner ads, which would provide a greater reach than
print-only publication. Despite Intervenors’ arguments to the contrary, the manner
in which Cin-Q Plaintiffs and BTL intend to provide notice is fair, adequate, and
reasonable. Cin-Q Plaintiffs and BTL agree to provide notice to Class Members by
sending the Notice via U.S. mail to the addresses associated with the fax numbers
at issue, which Epiq will obtain through a reverse-lookup process, and by Settlement

Intervenors also argue that the payment for providing notice and for settlement
administration costs should not come out of the Settlement Fund but rather should be paid
separately by BTL, as they proposed in the TTA Settlement. The Court finds nothing
inherently problematic with the costs of settlement administration coming out of the
Settlement Fund. See, e.g., George v. Academy Mortgage Corp. (UT), 369 F. Supp. 3d 1356,
1366 & 1383 (N.D. Ga. 2019) (noting that the total settlement amount included the
settlement administrator’s administration costs and awarding payment of the settlement
administration costs from the settlement fund in granting final approval of a class action
settlement).
10

73

Website. The Claim Form will be included with the mailed Notice and will also be
accessible to download from the Settlement Website. As to potential other forms
of notice, the parties leave to the Court’s discretion whether to provide notice by
facsimile and/or publication, following issuance of the Notice via U.S. mail and by
Settlement Website. Further, as discussed more fully during the hearing, the Court
will consider the propriety of notice by publication and by facsimile after Epiq
conducts the reverse-lookup process and provides the Notice on the Settlement
Website. If the Court determines that the combination of providing notice by
posting it on the Settlement Website and by mailing the Notice through the reverselookup process lacked efficacy in sufficiently notifying Class Members, the Court
will order that notice be provided by other means, including by publication and/or
by facsimile. Accordingly, Intervenors’ concerns regarding the adequacy of the
means for providing notice to Class Members is premature and unavailing at this
juncture.
More significantly, Intervenors argue that the phrase “including faxes from
the Tampa Bay Buccaneers” should be removed from the Claim Form.

As

discussed above, Cin-Q Plaintiffs and BTL included the language, after engaging in
extensive, arm’s-length negotiations overseen and facilitated by Judge Sansone, to
account for and prevent the submission of potentially fraudulent claims. The need
for this language arose from outstanding questions regarding the reliability of the
Biggerstaff Report.

Primarily, questions remain as to the reliability of the

Biggerstaff Report based upon Cin-Q Plaintiffs’ inability to obtain fax transmission

74

logs for the faxes transmitted in July 2009 by 127 High Street and Biggerstaff’s
opinion that he could deduce whether successful transmissions occurred by
comparing the universe of all fax numbers in the broadcast to the exception reports
showing unsuccessful transmissions (Biggerstaff Report, ¶19), which BTL’s expert,
David Canfield (“Canfield”), opined involved a flawed analysis “[b]ecause we do
not have any indication as to what might cause a number to be included on the
exception report,” and, thus, “it is not reasonable to assume that all of the numbers
that did not appear on the exception report emails represent successful
transmissions.” (Doc. 341, Ex. E, Expert Report of David E. Canfield (“Canfield
Report”), ¶19). As BTL frames it, “[t]his litigation is, of course, anything but
typical. Instead of a class list, all we have at this point is a list of numbers compiled
nearly a decade ago by Mr. Biggerstaff from materials of dubious heritage obtained
from sources of questionable reliability and with no indication as to the names and
addresses of any class members” (Doc. 341, at 2-3).
As Canfield explains, without BTL’s knowledge, FaxQom relied upon third
parties to both provide the fax numbers and to send the faxes that BTL asked
FaxQom to send, to the extent that such faxes were even sent (Canfield Report,
¶¶10-12). According to Canfield, for at least some of the faxes sent in 2009,
FaxQom worked with USADatalink to coordinate the sending of faxes, but USA
Datalink did not compile fax numbers or send any transmissions (Canfield Report,
¶13). Rather, USADatalink contracted out to another company, DMI Marketing,
to provide the database of fax numbers and yet another company, 127 High Street,

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to actually send the faxes (Canfield Report, ¶13). With respect to the faxes sent in
2010 and possibly some of the faxes in 2009, FaxQom engaged another company,
RMI, which claimed to only be a fax broadcaster and thus did not collect or compile
databases or fax numbers (Canfield Report, ¶14).
Canfield indicated that 127 High Street could not confirm whether it sent any
faxes relating to the Tampa Bay Buccaneers because it did not retain any records
from the period and no longer existed as an entity (Canfield Report, ¶13).
Consequently, 127 High Street provided no fax logs (Canfield Report, ¶18). Instead,
Biggerstaff relied upon lists found in emails of the principal of FaxQom purportedly
confirming the submission of projects and the list of target phone numbers along
with “exception report” emails purportedly indicating individual failed fax
transmissions for that project (Canfield Report, ¶18). Though RMI provided some
very basic log information, the logs did not provide definitive “MCF” notations
required to confirm receipt by the receiving fax machine (Canfield Report, ¶¶20-21).
Beyond that, Canfield notes several other deficiencies that call into question the
methodology used, the results obtained, and the opinions rendered by Biggerstaff
(Canfield Report, ¶¶8-61).
Against that backdrop, the addition of the disputed language represented a
fair compromise to resolve the outstanding issues. Namely, given the unique factual
and procedural history, the disputed substantive issues, the extensive negotiations
facilitated by a United States Magistrate Judge, and the contested expert findings
present in this action, including the issues regarding the reliability of the Biggerstaff

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Report, the inclusion of such language serves both Class Members, by potentially
preventing fraudulent claims from depleting the Settlement Fund, and the ends of
due process. Moreover, despite the Intervenors’ arguments to the contrary, the
inclusion of such language does not present an onerous hurdle for Class Members
seeking to submit a claim nor treats any Class Members inequitably. Accordingly,
the Claim Form is appropriate and thus approved.
In sum, therefore, the Claim Form, the Notice, and the proposed means of
providing notice to Class Members are all fair, reasonable, and adequate for
purposes of preliminary approval of the Settlement Agreement. Following issuance
of the Notice and the period for opting out and objecting, the Court will
subsequently conduct a fairness hearing. Such hearing will take place on November
9, 2022, at 10:00 a.m., in Courtroom 10A of the Sam M. Gibbons United States
Courthouse, 801 North Florida Avenue, Tampa, Florida. Cin-Q Plaintiffs shall
move for final approval of the settlement no later than 21 days prior to the fairness
hearing.
IV.

Conclusion

For the foregoing reasons, it is hereby
ORDERED:
1.

The Unopposed Motion for Preliminary Approval of Class Action

Settlement and Notice to the Class (Doc. 324) is GRANTED. Unless otherwise
indicated herein, the parties shall adhere to the terms of the Settlement Agreement.
2.

The following Settlement Class is preliminarily approved for purposes

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of settlement:
All persons who received or were successfully sent in
2009 or 2010 one or more facsimile advertisements
relating to tickets for Tampa Bay Buccaneers games.
Specifically excluded from the Settlement Class are the
following Persons:
(i)
BTL and its respective parents, subsidiaries,
divisions, affiliates, associated entities, business units,
predecessors in interest, successors, successors in interest
and representatives and each of their respective
immediate family members;
(ii)

Class Counsel; and

(iii) The judges who have presided over the
Litigation and any related cases.
3.

Cin-Q and M&C are preliminarily appointed as Class Representatives.

4.

Addison and the law firm of Addison Law Office, P.A., and Good,

Hara, and Wanca and the law firm of Anderson + Wanca are preliminarily
appointed as Class Counsel.
5.

The proposed settlement is fair, reasonable, and adequate to warrant

notice to the Settlement Class. The proposed Notice is approved and will (i)
describe the essential terms of the settlement; (ii) disclose any special benefits of
incentives to the class representatives; (iii) provide information regarding the
proposed attorneys’ fee award; (iv) indicate the time and place of the fairness
hearing for consideration of final approval of the settlement; (v) include information
regarding the method and time for objection and opting out of the settlement; (vi)
explain the procedures for allocating and distributing the Settlement Fund; and (vii)

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prominently display the address of Class Counsel and the procedure for making
inquiries.
6.

The Joint Motion for Appointment of Third-Party Settlement

Administrator (Doc. 337) is GRANTED. Epiq Class Action & Claim Solutions,
Inc. is appointed as Settlement Administrator to perform the functions delineated
in the Settlement Agreement, including disseminating the Class Notice in
accordance with the Settlement Class Notice Program described in the Settlement
Agreement and with the directives in this Order. The notice provisions contained
in the Settlement Agreement and this Order (i) provide the best practicable notice
and are reasonably calculated to apprise the Settlement Class of the pendency of the
litigation and of their right to object to or to exclude themselves from the proposed
settlement; (ii) are reasonable and constitute due, adequate, and sufficient notice to
all persons entitled to receive notice; and (iii) meet the requirements of applicable
law.
a.

No later than April 8, 2022, the parties will provide Epiq with

the records identifying the fax numbers to which the facsimile advertisements
offering tickets to Tampa Bay Buccaneers games were allegedly sent, which Epiq
will use to locate addresses for Class Members.
b.

No later than April 28, 2022, Epiq shall create the Settlement

Website, named BTL-TCPA-Settlement.com or, if unavailable, a name mutually
agreed upon by the parties.
c.

No later than May 31, 2022, Cin-Q Plaintiffs and BTL shall

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submit simultaneous briefing as to whether the Court should order additional
publication and/or fax notice based on the results of the reverse-lookup process.
d.

No later than June 27, 2022, Epiq will mail the Class Notice to

all members of the Settlement Class whose addresses were derived from the process
described above. Epiq shall establish a post office box in the name of the Settlement
Administrator to be used for receiving requests for exclusion and any other
communications. Only Epiq, Class Counsel, BTL Counsel, the Court, the Clerk of
Court, and any of their designated agents shall maintain access to the post office
box, unless otherwise agreed upon by the parties. Epiq will reject any claim that
does not substantially comply with the instructions on the Claim Form or the terms
of the Agreement or is postmarked later than the Claim Deadline.
7.

A fairness hearing to determine final approval of the settlement is

scheduled to occur on November 9, 2022, at 10:00 a.m., in Courtroom 10A of the
Sam M. Gibbons United States Courthouse, 801 North Florida Avenue, Tampa,
Florida.
8.

The Claim Form is approved. The deadlines for submitting Claims,

opting out, or objecting are as follows:
i.
ii.

Deadline for submitting an opt-out is September 26, 2022; and

iii.
9.

Deadline for submitting a Claim is September 26, 2022;

Deadline for submitting an objection is September 26, 2022.

Any Settlement Class Member who seeks to exclude himself or herself

from the Settlement Class shall submit an appropriate, timely request for exclusion,

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postmarked no later than September 26, 2022 to Epiq at the address on the Class
Notice.
10.

Any Settlement Class Member who does not submit a timely, written

request for exclusion from the Settlement Class will be bound by all proceedings,
orders, and judgments in the litigation, even if such Settlement Class Member
previously initiated or subsequently initiates individual litigation or other
proceedings encompassed by the Release.
11.

Any attorney hired by a Settlement Class Member for the purposes of

objecting to the proposed settlement, attorneys’ fee award, or incentive award and
who intends to make an appearance at the fairness hearing shall provide to Epiq
(who shall forward it to Class Counsel and BTL Counsel) and file with the Clerk of
Court a notice of intention to appear no later than October 3, 2022. Any Settlement
Class Member who files and serves a written objection and who intends to make an
appearance at the fairness hearing may so state in their objection.
12.

Epiq shall provide the opt-out list to Class Counsel and BTL Counsel

no later than October 6, 2022 after the opt-out and objection deadline and then file
with the Court the opt-out list with an affidavit attesting to the completeness and
accuracy thereof no later than October 11, 2022.
13.

Any Settlement Class Member who does not become an opt-out and

who seeks to object to the fairness, reasonableness, or adequacy of the settlement or
the Settlement Agreement shall file with the Court and serve on Class Counsel and
BTL Counsel on or before October 10, 2022 a statement of the objection signed by

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the Settlement Class Member containing the following information:
i.

The objector’s name, address, telephone number, and, if

represented by counsel, the name of his or her counsel;
ii.

A declaration stating that he or she is a Settlement Class

Member and received or was successfully sent one or more unsolicited facsimile
advertisements relating to tickets for Tampa Bay Buccaneers games;
iii.

A statement of all objections to the settlement; and

iv.

A statement of whether the objector intends to appear at the

fairness hearing, either with or without counsel, and, if with counsel, the name of
counsel who will attend.
14.

Any response to an objection shall be filed with the Court no later than

October 24, 2022.
15.

Any Settlement Class Member who does not file a timely written

objection to the settlement or who fails to otherwise comply with applicable
requirements shall be foreclosed from seeking any adjudication or review of the
settlement by appeal or otherwise.
16.

On or before October 31, 2022, Epiq shall submit proof of compliance

with the Settlement Class Notice Program and this Order.
17.

No later than April 28, 2022, Class Counsel may submit any motions

for an attorneys’ fee award and incentive awards. Class Counsel’s motion shall be
made available on the Settlement Website no later than May 2, 2022. Any other
party seeking to pursue an incentive award or any other attorney seeking to pursue

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an award of fees must submit such motions to the Court no later than October 24,
2022.
18.

Until such time as a Settlement Class Member has timely excluded

himself or herself from the Settlement Class, Settlement Class Members are
preliminarily enjoined from (i) filing, commencing, prosecuting, intervening in, or
participating as plaintiff, claimant, or class member in any other lawsuit or
administrative, regulatory, arbitration, or other proceeding in any jurisdiction based
on, relating to, or arising out of the claims and causes of action or the facts and
circumstances giving rise to the litigation and/or the released claims; (ii) filing,
commencing, participating in, or prosecuting a lawsuit or administrative,
regulatory, arbitration, or other proceeding as a class action on behalf of any
member of the Settlement Class who has not timely excluded himself or herself
(including by seeking to amend a pending complaint to include class allegations or
seeking class certification in a pending action), based on, relating to, or arising out
of the claims and causes of action or the facts and circumstances giving rise to the
litigation and/or the released claims; and (iii) attempting to effect opt-outs of a class
of individuals in any lawsuit or administrative, regulatory, arbitration, or other
proceeding based on, relating to, or arising out of the claims and causes of action or
the facts and circumstances giving rise to the litigation and/or released claims. Any
person who knowingly violates such injunction shall pay the attorneys’ fees and
costs incurred by BTL, any other released person, and Class Counsel resulting from
the violation. Nothing prohibits members of the Settlement Class from participating

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in any action or investigation initiated by a state or federal agency.
19.

This action is STAYED pending final approval of the settlement,

except that such stay shall not prevent the filing of any motions, affidavits, or other
filings necessary to obtain and preserve final judicial approval of the settlement.
DONE AND ORDERED in Tampa, Florida, on this 29th day of March,
2022.

cc:

Counsel of Record

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