Americana Art China Co., Inc. v. Foxfire Printing & Packaging, Inc.
In 2008, defendant faxed tens of thousands of unsolicited advertisements, violating the Telephone Consumer Protection Act, 47 U.S.C. 227. After defendant’s insurer intervened, a second proposed class action settlement was reached. The insurer, Continental, agreed to make $6.1 million available to class members. The total is approximately equal to the number of faxes sent (110,853) times per-fax damages offered by Continental ($55.03) with an attorney fee award of 1/3 the total amount: $2,033,333.33. The district court preliminarily approved the settlement and 24,389 of the 28,879 class members were successfully notified; five requested exclusion. None objected. Only 1,820 returned a claim form, seeking damages for 7,222 unlawful fax transmissions, so that Continental would pay out only $397,426.66 of the $6.1 million, with the remainder, less attorney fees and incentive awards, to revert. Despite the relatively meager final payout to class members, plaintiffs’ attorneys continued to demand more than $2 million. The district court employed the lodestar method, rather than the percentage method, applying a risk multiplier of 1.5 to arrive at a final fee award of $1,147,698.70. After arguments on appeal, the attorneys sought to dismiss. The Seventh Circuit declined to dismiss and affirmed the reduced fee award. View "Americana Art China Co., Inc. v. Foxfire Printing & Packaging, Inc." on Justia Law