by Jeff Sovern
Some of my students tell me they have received the following class action notice:
IF YOU RECEIVED A CALL THROUGH THE USE OF AN AUTOMATIC TELEPHONE DIALING SYSTEM AND/OR A PRERECORDED VOICE FROM DISCOVER TO YOUR CELLULAR TELEPHONE BETWEEN NOVEMBER 30, 2007 AND SEPTEMBER 10, 2013, THIS NOTICE DESCRIBES YOUR RIGHTS IN CONNECTION WITH SETTLEMENT OF A LAWSUIT AND YOUR POTENTIAL RECOVERY.
You may be entitled to a payment under a proposed class action settlement. In the lawsuit entitled Andrew Steinfeld v. Discover Financial Services, et al., U.S.D.C., Northern District of California Case No. 3:12-cv-01118-JSW (the “Action”), Plaintiffs claim that Discover Financial Services or related parties (including Discover Bank, The Student Loan Corporation and Discover Home Loans) (“Discover”) violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”), by placing calls on or after November 30, 2007 to cellular telephones through the use of an automatic telephone dialing system or an artificial or prerecorded voice without the prior express consent of Plaintiffs and the putative class members. Discover denies these claims and denies any claim of wrongdoing. The Court has not decided who is right. However, in settlement of the Action, Discover has agreed to implement practice changes and establish a settlement fund of $8.7 million. This notice is only a summary. Details of the settlement, including information on how to file a claim, are available at www.SteinfeldTCPASettlement.com or by writing to or calling the Claims Administrator at the address or toll-free number below.
Discover’s records indicate that you may be a member of the Settlement Class because Discover may have placed a call to your cellular telephone number using an automatic telephone dialing system or an artificial or prerecorded voice at some time between November 30, 2007 and September 10, 2013. Settlement Class Members may (1) submit Revocation Request Forms requesting that Discover cease making calls to their cellular telephone numbers using an automatic telephone dialing system or an artificial or prerecorded voice, (2) submit Claim Forms requesting money from the settlement in the form of a check or in the form of a one-time credit against the balance of their Discover credit card account, (3) exclude themselves from the settlement, (4) object to the settlement, and/or (5) do nothing. Class Counsel estimate that settlement payments or credits will be between $20 and $40, but could be more or less based on factors including the number of claims submitted.
You cannot receive a payment unless your claim is received by February 25, 2014. In addition to payments to the Settlement Class Members, the settlement provides for not more than $2,175,000 in attorneys’ fees and costs and $2,000 in service awards for the two representative plaintiffs to be sought from the Court by counsel for the Settlement Class. In the event that there are any remaining monies from uncashed checks totaling $50,000 or less, such monies will be paid to charity.
If you do not want to be legally bound by the settlement, you may opt out of the settlement by sending a request for exclusion to the Claims Administrator postmarked no later than January 13, 2014. If you exclude yourself from the settlement, you will not receive any money or other benefits from the settlement. If you stay in the settlement (i.e. do not exclude yourself from the settlement), you may object to the settlement by explaining in writing why you do not like the settlement postmarked no later than January 13, 2014. You will be bound by the settlement if your objection is rejected. If you do nothing (i.e. submit no claim or request for exclusion) you will not receive any benefits from the settlement but will nevertheless be bound by the settlement. All Settlement Class Members who do not exclude themselves will be bound by any judgment approving the settlement and will give up any right to sue Discover or related parties for any known or unknown claims relating to calls made to their cellular telephone numbers, including alleged violations of the TCPA.
TO OBTAIN FULL INSTRUCTIONS FOR EXCLUDING YOURSELF, FILING AN OBJECTION, SUBMITTING A REVOCATION REQUEST FORM, OR SUBMITTING A CLAIM FORM, GO TO WWW.STEINFELDTCPASETTLEMENT.COM, OR WRITE OR CALL THE CLAIMS ADMINISTRATOR AT STEINFELD TCPA CLAIMS ADMINISTRATOR, P.O. BOX 43209, PROVIDENCE, RI 02940-3209 OR 1-800-248-1796 (TOLL-FREE).
THIS IS ONLY A SUMMARY OF THE SETTLEMENT AND YOUR RIGHTS. DO NOT CALL OR WRITE TO THE COURT OR THE CLERK OF THE COURT. DO NOT CONTACT DISCOVER ABOUT THE SETTLEMENT. TELEPHONE REPRESENTATIVES ARE NOT AUTHORIZED TO CHANGE THE TERMS OF THE SETTLEMENT OR THIS NOTICE.
I find this kind of notice very troubling. How likely is it that many consumers will actually wade through it? Will consumers understand it (for example, do they know what it means to be "legally bound"?)? Will consumers bother to submit a claim when the disclosure is silent as to how much money they might get paid? I think notices like this really let class members down and fuel claims by industry lawyers that consumers don't benefit very much from class action suits. Such notices should be written in much easier to understand language and should be much shorter. Have you ever seen an ad that looks like this? If the experts in getting consumer attention don't use something like this when they are trying to get consumers' attention, why would anyone think that this would do the trick? How about an opening line like: "You may be entitled to $X (or a range of the amounts) from a settlement of a case if you received Discover telemarketing calls on your cell phone." and then no more than three additional short sentences?