Law360 (February 23, 2018, 8:24 PM EST) — A Georgia federal court Friday was asked to preliminarily approve JPMorgan Chase Bank NA’s $2.25 million settlement of Telephone Consumer Protection Act claims that the bank autodialed the cellphones of hundreds of thousands of customers after they verbally asked that the calls to stop.
Proposed class representatives Tomeka Barrow and Anthony Diaz’s unopposed motion for approval said that in its efforts since 2012 to collect on mortgage and home equity line of credit accounts, JPMorgan violated the TCPA by calling cellphones without the customers’ consent, via an automatic dialing system that used an automated voice. Oral revocation of consent is permitted, the customers maintained, and they had orally asked the bank to stop calling. More than 242,000 customers allegedly received such calls.
“JPMC has denied and continues to deny that it violated the TCPA, denies all charges of wrongdoing or liability against it in the Action and denies that any class could be certified,” Friday’s motion stated.
There are risks to both sides in continuing the litigation, and the bank has indicated it would have challenged any bid to certify the proposed class, according to the motion.
The motion also noted that the validity of a 2015 Federal Communications Commissionorder that expanded the TCPA’s definition of an “automatic telephone dialing system” is under challenge in the D.C. Circuit. No ruling has yet been issued in that case, ACA International v. FCC.
“Also, the real possibility of losing at trial further makes this settlement an acceptable compromise,” Friday’s motion said.
Likewise, JPMorgan faced the possibility of damages being substantially higher than the settlement if the class was certified and prevailed at trial, the motion said.
“Plaintiffs would contend that damages should be trebled in light of calls after oral revocation of consent,” the motion stated. “On the other hand, JPMC would likely argue that any violations were not willful due to its policy in place at the time to honor verbal or written cease and desist requests regarding debt collection phone calls.”
The motion said that parties balanced the risks of contentious litigation against the benefits to the proposed class in deciding in favor of the settlement.
Counsel for the proposed class plans to apply for an attorneys’ fees aware of up to 30 percent of the settlement fund, along with costs of up to $40,000, according to the motion. Barrow and Diaz will also request service awards of $5,000 each for their work on the case.
According to Friday’s motion, Barrow, Diaz and the proposed settlement class are entitled under the TCPA to statutory damages of $500 per violation and $1,500 for any “knowing and/or willful” violation of the federal law.
Based on an anticipated claims rate of 5 percent, class members would receive approximately $101 per claim in the settlement, an award that is “fair, appropriate, and reasonable given the purposes of the TCPA and in light of the anticipated risk, expense, and uncertainty of continued litigation,” the motion said.
If 10 percent of the class members were to submit a valid claim, the estimated individual recovery would be approximately $50.68, the motion stated in a footnote.
For purposes of the settlement, the class comprises persons in the United States “to whom JPMorgan Chase Bank N.A., or any affiliate or agent acting on its behalf, made one or more telephone calls to a cellular telephone through the use of an automatic telephone dialing system or a prerecorded or artificial voice on or after April 20, 2012, through the date of preliminary approval, regarding a mortgage or home equity line of credit account and who, prior to being called, orally requested that they not be called by JPMC.”
In the suit, Barrow had alleged that in June 2016, she “clearly and unequivocally” told a JPMorgan worker who called her that she only wanted to be contacted in writing. The bank autodialed her at least five times after that date, according Barrow.
An attorney for the plaintiffs as well as a press representative for JPMorgan declined Law360’s requests Friday for comment on the litigation and settlement.
Barrow and Diaz are represented by Abbas Kazerounian and Jason Ibey of the Kazerouni Law Group APC and Joshua B. Swigart of Hyde & Swigart.
JPMorgan is represented by Julia B. Strickland and Arjun P. Rao of Stroock & Stroock & Lavan LLP and Brian F. Hansen of Kutak Rock LLP.
The case is Barrow et al. v. JPMorgan Chase Bank NA, case number 1:16-cv-03577, in the U.S. District Court for the Northern District of Georgia.
–Editing by Edrienne Su.