The purpose of the Notice is to inform you that a proposed Settlement has been reached in the class action lawsuit styled Medgebow v. Checkers Drive-In Restaurants, Inc, LLC, Case No. 9:19-cv-80090 (S.D. Fla.). Because your rights will be affected by this Settlement, it is extremely important that you read the Notice carefully. The Notice summarizes the Settlement and your rights under it.
If you received a postcard or e-mail describing this Settlement, it is because Checkers’ records indicate that you are a member of the Settlement Class in this action. You are a member of the Settlement Class because Checkers sent one or more text messages to your cellular telephone number(s) after you texted Checkers to stop sending you text messages.Top
In a class action, one or more people called Class Representatives (here, Plaintiff) sue on behalf of people who allegedly have similar claims. This group is called a class and the persons included are called class members. One court resolves the issues for all of the class members, except for those who exclude themselves from the class.
Here, Plaintiff alleges that Checkers violated the TCPA by sending text messages to persons after they had expressly revoked their consent. Checkers denies these allegations and denies any wrongdoing. The Court has conditionally certified a class action for settlement purposes only. The Honorable Beth Bloom is the judge in charge of the lawsuit.Top
The Court did not decide in favor of Plaintiff or Checkers. Instead, both sides agreed to this Settlement. That way, they avoid the risk and cost of a trial, and the Settlement Class Members will receive compensation. Plaintiff and Class Counsel think the Settlement is best for all Settlement Class Members.Top
The Court has certified this case as a class action for settlement purposes only. The Settlement Class is defined as:
All persons in the United States (i) identified in the Settlement Class List (ii) who between January 28, 2018 and May 28, 2019 (the “Class Period”), attempted to unsubscribe from receiving text messages from Checkers’ short code 88001, by texting “stop,” “cancel,” “unsubscribe,” ”end,” “quit,” “optout,” “opt out,” “remove,” “cancelar,” “arret,” or “arrette” and were subsequently sent text message advertisements or promotions from Checkers to their cellular telephone and did not re-subscribe to receive text messages. Persons meeting this definition are referenced herein collectively as the “Settlement Class,” and individually as “Settlement Class Members.”
Notwithstanding the foregoing, the Settlement Class specifically excludes persons in the following categories: (A) individuals who are or were during the Class Period officers or directors of Checkers or any of its respective affiliates; (B) the district judge and magistrate judge presiding over this case, the judges of the United States Court of Appeals for the Eleventh Circuit, their spouses, and persons within the third degree of relationship to any of them; and (C) all persons who file a timely and proper request to be excluded from the Settlement Class in accordance with Section III(D) of this Agreement.Top
The Court has appointed lawyers from the law firms of Edwards Pottinger, LLC and Eggnatz | Pascucci as Class Counsel to represent you and the other persons in the Settlement Class. You will not be personally charged by these lawyers.Top
Class Counsel will ask the Court to approve payment from the Settlement Fund of up to $1,038,690 to them for attorneys’ fees, plus reasonable expenses not to exceed $15,000. Class Counsel also will ask the Court to approve payment of up to $5,000.00 to Plaintiff for his service as Class Representative. The Court may award less than these amounts.Top
Checkers has agreed to make available $3,462,300 to cover: (1) payments to Settlement Class Members who submit timely and valid claim forms; (2) an award of attorneys’ fees and expenses to Class Counsel; (3) a Service Award to Plaintiff; and (4) the costs of notice and administration of the Settlement.
All Settlement Class Members are eligible to submit a Claim Form and receive a payment.Top
If you submit a valid and timely claim, you will receive up to $450.Top
Unless you exclude yourself from the Settlement, you will be part of the Settlement Class and will be bound by the Release of claims in the Settlement. This means that if the Settlement is approved, you cannot pursue or continue to pursue any Released Claim against Checkers or any other Released Parties, whether on your own or as part of any other lawsuit, as explained in the Settlement Agreement. It also means that all of the Court’s orders will apply to you and legally bind you. Unless you exclude yourself from the Settlement, you will agree to release Checkers and any other Released Parties, as defined in the Settlement Agreement, from any and all Released Claims, including those that were asserted in the litigation and all claims that relate to or arise from Checkers sending text messages after revocation of consent.
If you have any questions about the Release or what it means, you can speak to Class Counsel, listed under Question 5, for free, or you can, at your own expense, talk to your own lawyer. The Release does not apply to persons in the Settlement Class who timely exclude themselves.Top
The Court will hold a hearing to decide whether to approve the Settlement. If the Court approves the Settlement, after that, there may be appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps more than a year. Settlement Class Members will be informed of the progress of the Settlement through information posted on the Settlement Website.
If you want to keep your rights to pursue or continue to pursue any Released Claim against Checkers and/or any Released Parties, as defined in the Settlement Agreement, then you must take steps to get out of the Settlement Class. This is called excluding yourself from, or opting out of, the Settlement Class.
To exclude yourself from the Settlement, you must send an exclusion request to the Claims Administrator. To be valid, you must mail a written notice of exclusion to the Claims Administrator, so that it is postmarked no later than August 13, 2019 (the “Opt-Out Deadline”), and shall clearly state the following in the written notice of exclusion: (a) identify the case name; (b) identify the name, address, and telephone number of the Settlement Class Member; (c) identify the cellular telephone number(s) where the person received a text message from Checkers relating to the Litigation; (d) be personally signed by the Settlement Class Member requesting exclusion; and (e) contain a statement that indicates a desire to be excluded from the Settlement Class in the Litigation, such as “I hereby request that I be excluded from the proposed Settlement Class in Medgebow v. Checkers Drive-In Restaurants, Inc, Case No. 9:19-cv-80090.” No request for exclusion will be valid unless all of the information described above is included. No person in the Settlement Class, or any person acting on behalf of or in concert or participation with that person in the Settlement Class, may exclude any other person in the Settlement Class from the Settlement Class.Top
No. If you do not exclude yourself, you give up any rights to pursue (or continue to pursue) any Released Claims against Checkers and/or any Released Parties.Top
No. If you ask to be excluded, you will not be able to submit a Claim Form for a Settlement payment, and you cannot object to the Settlement.Top
If you are in the Settlement Class, you can object to the Settlement or any part of the Settlement that you think the Court should reject, and the Court will consider your views. If you do not provide a written objection in the manner described below, you shall be deemed to have waived any objection and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy of the Settlement or the award of any attorneys’ fees and expenses and/or Service Award.
To be valid, the written objection must include: (a) the case name and number; (b) the name, address, and telephone number of the Settlement Class Member objecting and, if represented by counsel, of his/her counsel with counsel’s contract information; (c) the cellular telephone number(s) where he/she received a text message from Checkers relating to the Litigation; (d) a description of the specific factual and legal basis for each objection raised; (e) a list of any other objections filed in any court for the past five (5) years; (f) if he or she is represented by counsel, a list of objections filed by that counsel in any court for the past (5) years; (g) any and all agreements that relate to the objection or the process of objecting—whether written or oral—between objector or objector’s counsel and any other person or entity; and (h) a statement of whether he/she intends to appear at the Final Approval Hearing, either with or without counsel.
Any objection must be personally signed by the Settlement Class Member. Class or group objections shall be prohibited.
Any Settlement Class Member who fails to object to the Settlement in the manner described above shall be deemed to have waived any such objection, shall not be permitted to object to any terms or approval of the Settlement at the Final Approval Hearing, and shall be foreclosed from seeking any review of the Settlement or the terms of the Settlement Agreement by appeal or other means.
To be considered, you must file your objections with the Court. Your objections must also be mailed to the addresses below and postmarked no later than August 13, 2019.
Seth M. Lehrman, Esq. EDWARDS POTTINGER, LLC
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Joshua H. Eggnatz, Esq. Michael J. Pascucci, Esq. EGGNATZ | PASCUCCI
7450 Griffin Rd., Suite 230
Davie, FL 33314
David S. Almeida, Esq. BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP
333 West Wacker Drive, Suite 1900
Chicago, Illinois 60606
Even if you timely and properly object, to obtain a benefit from this Settlement, you must submit a Claim Form. If you object, but fail to submit a Claim Form, you will not receive any monetary award.
Objecting is telling the Court that you oppose something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself means that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.Top
If you do nothing, you will not receive any monetary award and you will give up your rights to pursue or continue to pursue Released Claims against Checkers and/or any other Released Parties.