PRESUMABLY FAIR: Highmark Class Settlement Withstands Preliminary Approval

Hi TCPAWorld! The Dame here with news on the preliminary approval of a HUGE class settlement.

The thing that is huge about this settlement is the large per class member dollar value. We are talking about approximately $1300 per class member ($70.69 for each eligible call)! There are approximately 7,403 members. So that’s around $9.6 million of liability estimated here.

The Court noted that $1300 to each class member “far exceeds other settlements involving similar claims.” Well clearly…

This falls only $300 short of the Hageman per class member amount, and over the amount we saw in the HSN settlement.

The preliminary approval was given by the Western District of Pennsylvania on December 12, 2022, in Walker, et. al. v. Highmark BCBSD Health Opinions, Inc., et al., No. 2:20-CV-01975-CCW, 2022 WL 17592067 (Dec. 13, 2022).  The Court here conditionally certified a prerecorded call/artificial voice class.

In making its decision, the court first analyzed the proposed settlement under the GMC factors and found that an “initial presumption of fairness” attached.

Next, the Court looked to whether the class had “obvious deficiencies”—such as class representatives or attorneys getting too much of the settlement amount and whether it falls into a range that can possibility withstand final approval—and found there were none. The incentive award for Walker is $10K. For Sterling and Fisher, it is $2500. Which the Court said was not unduly preferential treatment. Now, $10,000 is considered the outer limit in a TCPA case, but since the per class member amount is so high, the court found it “fair and reasonable.” Counsels are requesting 1/3 of the settlement as well which is seemingly high, but since the case has gone on for 2 years and took an extensive amount of work, the Court found this appropriate as well. As for the amount of the settlement, the $1300 per class member was obviously sufficient.

The Court then determined that provisional certification was appropriate here finding:

  • the numerosity, commonality, typicality, and no conflicts of interest requirements of Rule 23(a) were met;
  • “questions of law or fact common to class members predominate over any questions affecting only individual members” requirement of Rule 23(b)(3) was met;
  • and the superiority requirement (“whether a class action is the superior method to decide the matter”) of Rule 23(b)(3) was met.

The final issue the Court addressed was the sufficiency of the plan for giving notice to the class members. With some modifications (i.e. and extension of the deadline for objections), Court found that the plan met Rule 23(c)(3)’s requirements.

We will keep an eye on this to see if it withstands final approval.

Happy holidays!


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