SETTLEMENT REJECTED: $700k TCPA/CEMA Resolution Deemed Insufficient By Court

A common TCPA issue when state Mini-TCPA statutes are involved is determining who is subject to the state laws given that cell phone users might use area codes for a state but not live in that state.

This issue (among others) just sunk a TCPA class action up in Washington state– the Court was not convinced it could identify class members based on the area code of phone numbers in a data set!

In Kovanen v. Assert Realty, LLC 2025 WL 3123993 (W.D. Wash. Nov. 7, 2025) the parties reached a settlement whereby Defendant would pay $700k to resolve the claims of Washington resident’s to whose telephone numbers Defendants sent text messages for the purpose of promoting Asset Realty LLC d/b/a Century 21 Northwest’s real estate services without consent.

The data set supplied to the court, however, relied on expert analysis to identify phone numbers with Washington state area codes. The Court was unimpressed:

Plaintiff does not explain (1) why it is reasonable to apparently assume that individuals with area codes associated with states outside Washington could not have been Washington residents at the time the text messages were sent; 1 or (2) why [Expert] and not Defendants are tasked with supplying “the names and contact information of the subscriber or ordinary user of the telephone numbers at the time the text messages at issue in this case were sent,” given that it appears Plaintiff may not have access to it, see Dkt. No. 37 at 8 (only requiring this information “to the extent Plaintiff has access to [it]”). 2 Based on the current definitions, it appears that there may be individuals in the Settlement Class—which includes persons who received a relevant text message “while such person was a Washington resident,” Dkt. No. 37 at 6—who are not on the Class Lis —which encompasses only telephone numbers “contain[ing] Area Codes within the State of Washington,” Dkt. No. 19-2 at 1124. In other words, Washington residents with out-of state area codes could be Settlement Class Members but would not appear on the Class List. If there is no reliable method to identify whether a given text was sent to a Washington resident, the class definition needs to be narrowed. 3 Otherwise, the parties need to revise the Settlement Agreement to ensure that notice is reasonably calculated to reach all class members who would be bound by the proposal.

Get it?

There is a mismatch between the data set and the settlement class definition. The Court seems willing to approve a class of individuals with Washington area codes, but not a definition of Washington residents where the data is limited to area code information.

This makes sense because otherwise Washington residents who did not have Washington area codes would end up releasing Defendant without any notice of the class settlement.

So good on the court for paying attention here!

The Court also rejected the settlement because of uncertainty in how the class was to be treated in the payment of claims:

Furthermore, while the Agreement states that “Claimant Awards” will be paid “pro rata,” Dkt. No. 37 at 14, the Agreement does not describe exactly how that will work. This leaves various unanswered questions. Will Settlement Class Members with more than one device that received texts be entitled to multiple payments? Assuming that claimants who received disproportionately more text messages than others are not entitled to a greater payment, see id. at 46, is that a fair result? Is it equitable to pay the holders of the 27,436 “unique numbers” that had been listed on the DNC Registry for more than 30 days at the time they received the texts (thus providing them with a TCPA claim), Dkt. No. 19-2 at 1309; Dkt. No. 1-1 at 29–30, 35–36, the same as other Settlement Class Members? Mr. Kovanen does not explain how the chosen approach “treats class members equitably.”

Very interesting questions that most courts do not pose.

Will pay close attention here.

Also will we see YOU at the big DNC.com TCPA Summit in Florida next month? Queenie and I will both be speaking and it will be a FANTASTIC event. Plus it will be your first chance to hear me talk politics live and in person as Troutman For America holds its first ever fundraiser. Will be a ton of fun and HIGHLY educational for all. 

Register now!

Chat soon.