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COSTLY MISTAKES: AdaptHealth to Pay Approximately $6MM To Settle TCPA Claim After It Fails to Honor SMS Stop Requests
by Eric Troutman
So AdaptHealth just settled a TCPA case for about $7MM (I think) and this is just a weird settlement, for a couple of reasons.
First, let’s acknowledge that AdaptHealth was just featured on TCPAWorld like two days ago for making a blunder in a different TCPA case. That mistake may have cost TCPAWorld a clear shot to challenge a soon-to-be-issued FCC ruling. No biggie.
But apparently AdaptHealth has made a couple of other TCPA-related mistakes lately.
In Desouza v. Defendants AdaptHealth Corp. (“AdaptHealth”) and AeroCare Holdings (“AeroCare”) 2023 WL 5434712 (M.D. Fl. Aug. 7, 2023) AdaptHealth apparently failed to heed stop requests from consumers in response to text messages it was sending out.
Specifically, 32,035 folks apparently received approximately 220,000 text messages after asking for texts to stop.
That is just plain not good.
The class definition was:
Since November 23, 2018, all persons to whose telephone number the AdaptHealth Parties initiated, or
had initiated on their behalf, more than one text message in a 12-month period for the purpose of inviting
the recipient to order CPAP supplies, after the recipient had replied “stop” or its equivalent to one of the
AdaptHealth Parties’ text messages.
So text messages to sell CPAP supplies resulted in a massive TCPA exposure when, apparently, AdaptHealth failed to honor stop messages.
Weird and bad. But tech glitches do happen, I suppose.
But things get weirder still.
The settlement structure here is unusual. Usually in TCPA class actions a settlement is a common fund–meaning all sums to be paid come out of a single sum to be paid by the defendant.
AdaptHealth did it differently for some reason. First, they agreed to pay $160.00 to each Plaintiff on a claims made basis. That means they may be on the hook for over $5MM just for payments to class members (although they may end up paying much less depending on how many claims are made.)
But then they are going to pay another sum on top of that to compensate the Plaintiffs lawyers. That amount is not set yet but it looks to be over $1MM.
Eesh.
And another weird thing– who the Plaintiff’s lawyers are.
This isn’t the Wolf, or the Godfather, or anybody else on the top 10 here.
Class counsel here is Jeremy M. Glapion, Esq. and Bradford R. Sohn, Esq.
I mean, these are decent fellows but they aren’t exactly the murderer’s row of TCPAWorld. But definitely good enough to win, it would seem.
Another weird thing is the limited release. Usually a TCPA defendant paying millions of dollars will get a nice big fat broad release of a whole bunch of claims available to a whole bunch of people. Here, seemingly, not so much. The Court notes the release at issue is limited to claims “that relate to or arise out of the Post-Stop texts that were sent during the Class Period.”
So that’s it huh. $6MM and the class members can still sue you for other claims?
Eesh.
But the last–and weirdest–thing is that this is a text message case. So some people might be thinking–after Facebook and after the FTSA amendments, why would AdaptHealth agree to pay so much here? It is odd. But remember these were all individuals who should have been put on the internal DNC list and were not. So there is value to settling the claims but I am not sure there is a private right of action in this context absent evidence AH also did not have a DNC policy (if it did there should have been a complete good faith defense.) So.. yeah…weird.
Regardless, that last point drives a big take away here– even if you are using text messaging (which remains the safest channel) you still need to be honoring text messages effectively. Failing to do so can still be extremely costly.
I am quite certain AdaptHealth did not intentionally ignore consumer’s asking for texts to stop. It was undoubtedly a glitch somewhere. But the TCPA is a strict liability statute in most respects. So you need to be extremely cautious. Still though good policies and practices and keep you out of multi-million dollar trouble.
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