Tech. Training Assocs. v. Buccaneers Ltd.
| Decision Date | 30 September 2019 |
| Docket Number | Case No. 8:16-cv-1622-T-AEP |
| Parties | TECHNOLOGY TRAINING ASSOCIATES, INC., et al., Plaintiffs, v. BUCCANEERS LIMITED PARTNERSHIP, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Once again, the Court confronts the issue of the propriety of the preliminary approval of the settlement of the class claims in this matter. Procedurally, however, the landscape has changed. Following reversal and remand of the Court's prior Order denying the Motion to Intervene, the Intervenors, or Cin-Q Plaintiffs, now appear in this action. By the instant motion, Cin-Q Plaintiffs seek a ruling by this Court decertifying the settlement class, vacating the preliminary approval order, and striking the class allegations (Doc. 131). Both Plaintiffs Technology Training Associates, Inc. and Larry E. Schwanke, D.C. d/b/a Back to Basiccs Family Chiropractic (collectively, "TTA Plaintiffs") and Defendant Buccaneers Limited Partnership ("BLP") respond in opposition (Docs. 141 & 148). For the reasons detailed below, Cin-Q Plaintiffs' Renewed Motion to Decertify Settlement Class, Vacate Preliminary Approval Order, and Strike Class Allegations (Doc. 131) is granted.
In June 2013, Cin-Q Automobiles, Inc. ("Cin-Q") initiated an action against BLP, alleging that BLP sent unsolicited advertisements via facsimile to Cin-Q in violation of the TCPA and its implementing regulations. See Cin-Q Automobiles, Inc. v. Buccaneers Ltd. P'ship, et al., Case No. 8:13-cv-1592-T-AEP (M.D. Fla. filed June 18, 2013) ("Cin-Q Action") (Doc. 1). The faxed advertisements pertained to Tampa Bay Buccaneers tickets and were allegedly sent by or on behalf of BLP in 2009 and 2010. In January 2014, the Court allowed Cin-Q to file a Second Amended Class Action Complaint adding Medical & Chiropractic Clinic, Inc. ("M&C") as another named plaintiff and putative class representative (collectively, "Cin-Q Plaintiffs"). Cin-Q Action, (Doc. 68). The Second Amended Class Action Complaint in the Cin-Q Action defined the putative 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. 37, Ex. 1, at ¶25).
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. On March 25, 2016, after surviving BLP's motions to dismiss and for summary judgment, Cin-Q Plaintiffs filed their Motion for Class Certification. Cin-Q Action, (Doc. 207). BLP received extensions to file its response to the Motion for Class Certification, during which the parties continued to leave settlement discussions open. BLP then moved, on April 18, 2016, for a settlement 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, on May 2, 2016, at the request of Cin-Q Plaintiffs, the mediator declared an impasse. Cin-Q Action, (Doc. 218).
BLP never filed a response to Cin-Q Plaintiffs' Motion for Class Certification. Instead, on May 12, 2016, BLP 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).
Namely, after the settlement discussions in the Cin-Q Action reached an impasse, and while the motion for class certification was still pending in the Cin-Q Action, TTA Plaintiffs contacted BLP 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 the aforementioned action against BLP 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 Technology Training Assocs., Inc. v. Buccaneers Ltd. P'ship, No. 16-CA-4333 (Fla. Cir. Ct.) (filed May 6, 2016) ("Technology Training I Action") (Doc. 1). 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 BLP 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 moved the state court on May 13, 2016, to allow them to intervene in, to dismiss, or to stay the Technology Training I Action. 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 that action, including BLP's motion for settlementconference, Cin-Q Plaintiffs' motion to enjoin BLP from participating in a competing case, and BLP'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 BLP to conduct another mediation conference prior to BLP's deadline for filing a response to the motion for class certification in the Cin-Q Action on June 20, 2016. Cin-Q Action, (Doc. 233). During the hearing, the undersigned further directed that, if BLP entered into a settlement affecting class certification in the Cin-Q Action, BLP must notify Cin-Q Plaintiffs of the potential settlement in any separate action three days prior to the filing of any settlement or pleading relating to a settlement.
Following dismissal of the Technology Training I Action, TTA Plaintiffs and BLP conducted two full days of mediation, which resulted in an agreement on a class settlement (the "Settlement") on June 16, 2016. Upon reaching the Settlement with TTA Plaintiffs, BLP provided written notice to Cin-Q Plaintiffs of the Settlement in accordance with the undersigned's directive at the May 25, 2016 hearing. Subsequently, TTA Plaintiffs initiated the instant action ("Technology Training II Action" or "this action") on June 20, 2016 (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. Essentially, TTA Plaintiffs alleged that BLP 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 class as:
All persons who, in 2009 or 2010, received one or more facsimile advertisements sent by or on behalf of BLP and offering tickets for Tampa Bay Buccaneers games.
(Doc. 1, at ¶17). Specifically excluded from the Settlement Class are the following Persons: (1) BLP 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 (Doc. 1, at ¶17). As for the relief requested, 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) to 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"), and Anderson + Wanca as interim co-lead counsel for the class (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 Cin-Q Action seeking the same relief, while BLP 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 Action or, alternatively, an extension of time to respond to the Cin-Q Action motion for class certification. Cin-Q Action, (Docs. 236 & 237). Subsequently, on June 22, 2016, TTA Plaintiffs filed their Unopposed Motion for Preliminary Approval of Class Action Settlement and Notice to the Class (Doc. 18). Pursuant to Rule 23(e), Plaintiffs requested, on behalf of themselves and a proposed settlement class of similarly situated persons (the "Settlement Class"), that the Court enter an order (1) preliminarily approving the parties'proposed class action settlement agreement (the "Settlement Agreement") that appoints Plaintiffs as class representatives and their attorneys as class counsel; (2) approving the form of Class Notice attached to the Settlement Agreement and its dissemination to...
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