Cook, Bermudez, et al. v. Palmer, Reifler & Associates, and Wal-Mart Stores, Inc. Settlement

Case No. 3:16-cv-00673-BJD-JRK in United States District Court for the Middle District of Florida

 

Cook and Bermudez et al v. Palmer, Reifler & Associates and Wal-Mart Stores, Inc.

USDC, Middle District of Florida, Jacksonville Division

Case No. 3:16-cv-00673-BJD-JRK

 

Update: The Court granted Final Approval in this matter on June 5, 2020. A copy of the Final Approval Order can be viewed here. Settlement Checks are scheduled to be mailed in August 2020 to Participating Class Members that submit a Valid Claim. If you have received a letter or email concerning additional tax information associated with your payment and have any questions, please contact the Settlement Administrator at [email protected] or 1-800-657-1186.

 

If you received calls on your cell phone from Palmer, Reifler & Associates (“PRA”) on behalf of Wal-Mart Stores, Inc. (“Walmart”), you may be entitled to benefits under a class action settlement.

 

A federal court authorized this Notice. This is not a solicitation from a lawyer.

 

A.  Wrong-Number Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called the wrong number, such as where PRA listed that number on its Wrong Number List.

B.  Call after Wrong-Number Notation Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called the wrong number after it was already informed it had the wrong number, such as where the number was previously added to PRA’s Wrong-Number List.

C.  DNC Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called after receiving a do not call request, such as where the number was previously added to PRA’s Do Not Call List.

 

 

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

SUBMIT A CLAIM FORM

If you submit a valid Claim Form by March 9, 2020, you will receive a payment and will give up your rights to sue Walmart and PRA and any other released parties related to a released claim. Claim Forms may be submitted by mail to Walmart & PRA TCPA Litigation c/o Settlement Administrator, PO Box 23459 Jacksonville, FL 32241-3459 or through the settlement website www.PRATCPASettlement.com or by calling 1-800-657-1186.

EXCLUDE YOURSELF OR “OPT-OUT” OF THE SETTLEMENT

If you ask to be excluded, you will not receive a payment.  This is the only option that allows you to pursue your own claims against Walmart or PRA or other released parties related to a released claim. The deadline for excluding yourself is March 9, 2020.

OBJECT TO THE SETTLEMENT

If you wish to object to the settlement, you must write to the Court about why you believe the settlement is unfair in any respect. The deadline for objecting is March 9, 2020. To obtain a benefit from this settlement, you must still submit a Claim Form. If you submit only an objection without a Claim Form, you will not receive any benefit from the settlement and you will give up your rights to sue Walmart or PRA or any other released parties related to a released claim.

DO NOTHING

If you do nothing, you will not receive any monetary award and you will give up your rights to sue Walmart or PRA or any other released parties related to a released claim.

GO TO THE FINAL APPROVAL HEARING

You may attend the Final Approval Hearing. At the Final Approval Hearing you may ask to speak in Court about the fairness of the settlement. To speak at the Final Approval Hearing, you must file a document which includes your name, address, telephone number and your signature with the Court, which must also state your intention to appear at the Final Approval Hearing. This must be filed no later than April 23, 2020.

 

 

  1. What is the purpose of this Notice?

    1. The purpose of this Notice is to inform you that a proposed Settlement has been reached in the putative class action lawsuit entitled Cook and Bermudez, et al. v. Palmer, Reifler & Associates and Wal-Mart Stores, Inc., filed in the USDC, Middle District of Florida, Jacksonville Division Case No. 3:16-cv-00673-BJD-JRK. Because your rights will be affected by this Settlement, it is extremely important that you read this Notice carefully. This Notice summarizes the settlement and your rights under it.

  2. What does it mean if I received an email or postcard about this settlement?

    1. If you received an email or postcard describing this settlement, it is because Walmart and PRA’s records indicate that you may be a member of the Settlement Class. You are a class member if your cellular telephone numbers have been identified fitting one of the below Settlement Class:

      A.  Wrong-Number Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called the wrong number, such as where PRA listed that number on its Wrong Number List.

      B.  Call after Wrong-Number Notation Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called the wrong number after it was already informed it had the wrong number, such as where the number was previously added to PRA’s Wrong-Number List.

      C.  DNC Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called after receiving a do not call request, such as where the number was previously added to PRA’s Do Not Call List.

      Excluded from the Settlement Class are the Judge to whom the Action is assigned, and any member of the Court’s staff and immediate family, and all persons who are validly excluded from the Settlement Class.

  3. What is this class action lawsuit about?

    1. In a class action, one or more people called Class Representatives (here, Plaintiff, Emanuel Bermudez) 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 claims Walmart and PRA violated the TCPA by placing prerecorded calls to cellular telephones without prior express consent. Walmart and PRA deny these allegations and deny any claim of wrongdoing. The Court has conditionally certified a class action for settlement purposes only. The Honorable Brian J. Davis is in charge of this action.

  4. Why is there a settlement?

    1. The Court did not decide in favor of Plaintiff or Walmart or PRA. Instead, the parties agreed to this settlement. This way, the parties 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 persons in the Settlement Class.

  5. How do I know if I am a part of the settlement class?

    1. The Court has certified a class action for settlement purposes only. The Settlement Class is defined as:

      A.  Wrong-Number Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called the wrong number, such as where PRA listed that number on its Wrong Number List.

      B.  Call after Wrong-Number Notation Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called the wrong number after it was already informed it had the wrong number, such as where the number was previously added to PRA’s Wrong-Number List.

      C.  DNC Class:  (1) All persons in the United States (2) to whose cellular telephone number (3) PRA placed or caused to be placed a non-emergency telephone call (4) on behalf of Walmart (5) using an artificial or prerecorded voice (6) within 4 years of the complaint (7) where PRA called after receiving a do not call request, such as where the number was previously added to PRA’s Do Not Call List.

      “Settlement Class Member” is defined as any person in the Settlement Class who is not validly excluded from the Settlement Class. If you are still not sure whether you are included, you can visit other sections of the Settlement Website, www.PRATCPASettlement.com, you may write to the claims administrator at Walmart & PRA TCPA Litigation c/o Settlement Administrator, PO Box 23459 Jacksonville, FL 32241-3459, or you may call the Toll-Free Settlement Hotline, 1-800-657-1186, for more information.

  6. Do I have lawyers in this case?

    1. The Court has appointed the law firms of Keogh Law, Ltd. and The Consumer Protection Firm as Class Counsel to represent you and the other persons in the Settlement Class. You will not be personally charged by these lawyers.

  7. How will Class Counsel be paid?

    1. Class Counsel will ask the Court to approve payment of up to one third of the Settlement Fund, or $1,165,500.00, for attorneys’ fees plus reasonable expenses. Class Counsel also will ask the Court to approve payment of $20,000 to Plaintiff for his services as Class Representative. The Court may award less than these amounts.

  8. What does the settlement provide?

    1. Settlement Fund. Walmart will pay the total amount of $3,500,000 into a fund (the “Settlement Fund”), which will cover:  (1) cash payments to Settlement Class Members who submit timely and valid Claim Forms; (2) an award of attorneys’ fees and costs to Class Counsel, in an amount equal to one third of the settlement fund, not to exceed $1,165,500.00 plus expenses, as approved by the Court; (3) service award to the Plaintiff, Emanuel Bermudez, in an amount not to exceed $20,000, as approved by the Court; (4) the costs of notice and administration of the Settlement; and (5) under certain circumstances as described below, a charitable contribution.

      Cash Payments.  All Settlement Class Members are eligible to submit a Claim Form and receive a cash payment. To submit a Claim Form, follow the procedures described under Question 11 below.

      No Portion of the Settlement Fund Will Return to WalmartAny money remaining in the Settlement Fund after paying all valid and timely claims to Settlement Class Members, attorneys’ fees and costs to Class Counsel, any service award to Plaintiff, and the costs of notice and administration of  the settlement will be distributed on a pro rata basis to those Settlement Class Members who cashed their Initial Settlement Award Check. This subsequent distribution will be made within ninety (90) days after the expiration date of the Initial Settlement Award Check has passed.

  9. How much will my payment be?

    1. Your share of the Settlement Fund will depend on the number of valid Claim Forms that Settlement Class Members submit. Class Counsel estimates that the amount of the cash award (while dependent upon the number of claims) may be within the range of $957 to $1,900.  This is an estimate only. The final cash payment amount will depend on the total number of valid and timely claims submitted by Settlement Class Members.

  10. What am I giving up to stay in the Settlement Class?

    1. 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 rely on any Released Claim to sue, or continue to sue, Walmart, PRA or any other Released Parties, 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 Walmart and PRA and any other Released Parties, as defined in the Settlement Agreement, from any and all claims that arise from the prerecorded calls to your cellular telephone at issue in this action.

      In summary, the Release includes any and all claims, rights, causes of action, penalties, demands, damages, debts, accounts, duties, costs and expenses (other than those costs and expenses required to be paid pursuant to this Agreement), liens, charges, complaints, causes of action, obligations, or liability of any and every kind that were asserted in the Action, or that could have been asserted but were not asserted in the Action, or in any other court or forum, whether known or unknown, on the basis of, connected with, arising out of, or related in whole or in part to any or all of the alleged acts, omissions, facts, matters, transactions, circumstances, and occurrences that were directly or indirectly alleged, asserted, described, set forth, or referred to in the Action, whether such allegations were or could have been based on common law or equity, or on any statute, rule, regulation, order, or law, whether federal, state, or local, including but not limited to claims relating to the TCPA and other laws involving the use of automatic telephone dialing system and/or the use of artificial or prerecorded voice (“Released Claims”).

      If you have any questions about the Release or what it means, you can speak to Class Counsel, listed under Question 6, for free; or, at your own expense, you may talk to your own lawyer. The Release does not apply to persons in the Settlement Class who timely exclude themselves.

  11. How can I get a payment?

    1. If you submitted a valid claim, you were mailed a settlement check on August 18, 2020. Your check expired on December 16, 2020. If you did not cash your check by December 18, 2020, your check will no longer be valid, and any uncashed checks will be distributed per the Settlement Agreement.

  12. When would I receive a settlement payment?

    1. The Court will hold a hearing on May 28, 2020 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. Everyone who sends in a Claim Form will be informed of the progress of the settlement through information posted on the Settlement Website at www.PRATCPASettlement.com.  Please be patient.

  13. How do I get out of the settlement?

    1. If you want to keep the right to sue, or continue to sue, Walmart, PRA or a Released Party, 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, an exclusion request must: (i) be signed by the person in the Settlement Class who is requesting exclusion; (ii) include the full name and address of the person in the Settlement Class requesting exclusion; and (iii) include the following statement: “I/we request to be excluded from the settlement in the Walmart and PRA TCPA action.” 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.

      To be valid, you must mail your exclusion request so that it is postmarked no later than March 9, 2020 to the claims administrator at Walmart & PRA TCPA Litigation c/o Settlement Administrator, PO Box 23459 Jacksonville, FL 32241-3459.

  14. If I do not exclude myself, can I sue Walmart or PRA for the same thing later?

    1. No. If you do not exclude yourself, you give up any right to sue (or continue to sue) Walmart, PRA or any Released Parties for the claims that this settlement resolves.

  15. If I exclude myself, can I get a benefit from this settlement?

    1. 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.

  16. How do I tell the Court that I do not think the settlement is fair?

    1. 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 costs and/or service award.

      To object, you must make your objection in writing, stating that you object to the settlement in Walmart and PRA Telephone Consumer Protection Act Litigation. To be considered by the Court, the written objection must: (i) attach documents establishing, or provide information sufficient to allow the parties to confirm, that the objector is a Settlement Class Member, including providing the cellular telephone number at which you received prerecorded calls; (ii) include a statement of the specific objections; and (iii) state the grounds for objection, as well as identify any documents which the objector desires the Court to consider.

      To be considered, you must file your objections with the Court and mail your objections to the addresses below no later than 3/9/2020.

      For Plaintiff:

      Keith Keogh Amy L. Wells Keogh Law, Ltd. 55 Monroe St., 3390 Chicago, IL 60603

      William Peerce Howard Amanda J. Allen  The Consumer Protection Firm 210 A-South MacDill Ave. Tampa, Florida 33609

      For Defendant, Walmart:

      Shannon Z. Petersen Sheppard, Mullin, Richter & Hampton, LLP 12275 El Camino Real, Suite 200 San Diego, CA 92130

      For Defendant, PRA:

      Ernest H. “Skip” Kohlmyer, III Shepard, Smith, Kohlmyer & Hand, P.A. 2300 Maitland Center Pkwy., Suite 100, Maitland, FL 32751

      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.

  17. What is the difference between objecting and excluding yourself?

    1. Objecting is telling the Court that you do not like 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.

  18. What happens if I do nothing at all?

    1. If you do nothing, you will not receive any monetary award and you will give up your rights to sue Walmart or PRA or any other Released Parties related to a Released Claim. For information relating to what rights you are giving up, see Question 10.

  19. When and where will the Court decide whether to approve the settlement?

    1. The Court will hold a Final Approval Hearing at 2:00 p.m. on May 28, 2020  in Room 12C, at  United States Courthouse, 300 North Hogan Street, Jacksonville, FL 32202. At this hearing, the Court will consider whether the settlement is fair, reasonable and adequate. If there are valid objections that comply with the requirements in Question 13 above, the Court also will consider them and will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay to Class Counsel and Plaintiff.

      The Final Approval Hearing may be moved to a different date or time without additional notice, so it is a good idea to check the Settlement Website for updates.

  20. Do I have to come to the hearing?

    1. No. Class Counsel will appear on behalf of the Settlement Class. But, you are welcome to come, or have your own lawyer appear, at your own expense.

  21. May I speak at the hearing?

    1. You may ask the Court for permission to speak at the Final Approval Hearing, but only in connection with an objection that you have timely submitted to the Court according to the procedure set forth in Question 16 above. To speak at the Final Approval Hearing, you must also file a document with the Court stating your intention to appear. For this document to be considered, it must include your name, address, telephone number and your signature. The document must be filed with the Court no later than March 9, 2020. You cannot speak at the hearing if you exclude yourself from the settlement

  22. How do I get more information?

    1. This notice is only a summary of the proposed settlement. You can get a copy of the settlement agreement by visiting the Settlement Website, www.PRATCPASettlement.com, or you can write to the address below or call the Toll-Free Settlement Hotline, 1-800-657-1186.  You can also call Class Counsel with any questions at 866-726-1092.

      DO NOT CALL OR WRITE TO THE COURT, THE CLERK OF THE COURT, WALMART STORES, INC., PALMER, REILFER & ASSOCIATES, OR WALMART OR PRA’S COUNSEL ABOUT THE SETTLEMENT. ALSO, TELEPHONE REPRESENTATIVES WHO ANSWER CALLS MADE TO THE TOLL-FREE NUMBER ARE NOT AUTHORIZED TO CHANGE THE TERMS OF THE SETTLEMENT OR THIS NOTICE.