On July 6, the U.S. District Court for the Middle District of Florida granted final approval of a multimillion-dollar, class-action settlement in Parker v. Stoneledge Furniture, LLC, et al., No. 21-740 (M.D. Fla.) to resolve claims brought under the Telephone Consumer Protection Act (TCPA) against furniture companies Stoneledge Furniture LLC and Southwestern Furniture of Wisconsin LLC d/b/a Ashley Furniture.

The settlement resolves claims that the furniture companies sent unsolicited, autodialed text messages to class members in violation of the TCPA. Plaintiff Michael Parker alleged negligent and knowing and/or willful violations of the TCPA after receiving multiple marketing text messages from the furniture companies, even though he was not a customer, he did not recall providing the furniture companies with his cellphone number, and he did not provide them with his prior express written consent to receive any automated phone calls or text messages. The system used to send text messages was deemed automated by the parties at settlement.

The settlement class comprises all individuals within the United States to whom the furniture companies “sent, or caused to be sent, a text message, directed to a number assigned to a cellular telephone service, utilizing an automatic telephone dialing system without prior express consent” between May 1, 2017 and September 30, 2020. The settlement class excludes individuals that received text messages “purely to consummate a purchase transaction, such as text messages solely sent to set up time for delivery of a purchase.” The court certified the settlement class, finding that the requirements of Fed. R. Civ. P. 23 were satisfied.

Under the settlement agreement, the estimated 417,981 class members will receive a cash payment by default, or they may alternatively elect a voucher award in the amounts of (1) $10 by check for the first text and $7 by check for the second text received from the furniture companies, or (2) a $25 voucher for the first text received and a $15 voucher for the second text received from the furniture companies. As a result, the furniture companies must avail a minimum in excess of $4 million in cash and a minimum in excess of $10 million in vouchers to fund the settlement. The settlement agreement also stipulates a $400,000 award of attorneys’ fees and expenses.

In approving the settlement, Judge Charlene Edwards Honeywell of the Middle District remarked that class counsel “achieved excellent monetary results” for the class members and that the per person cash benefit is “well within the range of recoveries established by other court approved TCPA class action settlements.”

While the underlying facts indicate that the challenged texts included telemarketing content, which would have triggered a number of specific compliance requirements that the defendants apparently did not meet, the settlement was based on the use of an automatic telephone dialing system (ATDS) to send messages without regard to whether the message was telemarketing. In Facebook v. Duguid, the U.S. Supreme Court dramatically limited the types of telephony systems that would be deemed an ATDS. The settlement appears to illustrate that the impact of Facebook v. Duguid has not been to eliminate all legal risk that telephony systems can be deemed an ATDS.