Gallup, Inc. has agreed to pay up to $12 million to settle three separate class actions which alleged that the Washington D.C.-based pollster violated the Telephone Consumer Protection Act of 1991 (“TCPA”) by autodialing class members’ cell phones without their prior consent. Soto v. The Gallup Organization, Inc., No. 13-61747 (S.D. Fla., complaint filed Aug. 12, 2013). See Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement (May 15, 2015) available here, Settlement Agreement (May 15, 2015) here, and Order Granting Preliminary Approval (June 16, 2015) here.
Congress passed the TCPA in response to consumer complaints about invasive telemarketing practices, including “robodialing,” or the use of automatic telephone dialing systems (“ATDS”) to deliver artificial or prerecorded voice messages. Among other practices, the TCPA prohibits “a person . . . [from making] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any [ATDS] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1). The TCPA directs the Federal Communications Commission (“FCC”) to prescribe implementing regulations, and creates a private cause of action for individuals to receive $500 in damages for each violation, or treble damages for all “willful” and “knowing” violations.
The Soto plaintiffs alleged that Gallup robodialed over 6.9 million cell phones during the class period. These calls were allegedly placed using an ATDS that had the capacity to store or produce numbers and dial them at random. Under the preliminarily approved settlement, Gallup agreed to establish a $12 million settlement fund, including $4 million in attorneys’ fees and costs, $2.5 million in settlement administration costs, and $2,000 incentive awards to each of the three plaintiffs. The $5.5 million balance will be divided evenly among all class members who submit claims for payment. Based on previous settlements, the parties anticipate that participating class members will receive between $25 and $80 per claim.
According to the FCC, TCPA complaints comprise the largest category of informal complaints filed with the agency. See FCC Encyclopedia, Quarterly Reports-Consumer Inquiries and Complaints, Top Complaint Subjects. The FCC received “approximately 63,000 complaints about illegal robocalls each month” during the fourth quarter of 2009, and “[b]y the fourth quarter of 2012, robocall complaints had peaked at more than 200,000 per month.” See Federal Trade Commission Staff’s Comments on Public Notice DA 14-1700 Regarding Call Blocking, CG Docket No. 02-278, WC Docket No. 07-135, at 2 n.5 (Jan. 23, 2015). The FTC also reports that, “[f]rom October 2013 to September 2014, [it] received an average of 261,757 do-not-call complaints per month, of which approximately 55% (144,550 per month) were complaints about robocalls.” Id. at 2 n.4. TCPA litigation is likewise on the rise. According to one estimate, “TCPA lawsuits were up 116 percent in September 2013 compared to September 2012. Echoing that trend, year-to-date TCPA lawsuits have increased 70 percent in 2013.”
Eduardo Santos, Associate
CAPSTONE LAW APC