Georgia Supreme Court knocks down TCPA class action
Facts: HCF’s client was Carnett’s, Inc., an Atlanta-area car wash chain. Carnett’s had 73,500 faxes sent to potential and existing Carnett’s customers with a discount coupon attached. Plaintiff Michelle Hammond received one of these faxes and alleged that she had never been a Carnett’s customer and that the fax was entirely unsolicited. She then filed suit against Carnett’s alleging that it violated the federal Telephone Consumer Protection Act, which prohibits sending unsolicited fax advertisements. See 47 U.S.C.A. 227 et seq. Statutory damages for violating the TCPA are $500 per unsolicited fax. If the fax is sent in knowing violation of the TCPA, the statutory damages increase to $1,500.
After filing suit, Hammond requested class certification to bring claims on behalf of all persons who received Carnett’s faxes. If the class were certified, Carnett’s would effectively have been facing minimum statutory damages of more than $36 million and damages possibly as high as $110 million.
The plaintiff argued that she was per se entitled to have the class certified since the Georgia Court of Appeals had already upheld class certification in a similar TCPA case. See Nicholson v. Hooters of Augusta, Inc, 245 Ga. App. 363 (2000), (Hooters was ultimately forced to pay almost $12 million in damages after that class was certified). HCF successfully convinced the trial court to not certify the class against Carnett’s. See 2003 WL 22319072.
Following the trial court’s ruling, Plaintiff retained former Georgia Gov. Roy Barnes and appealed. The Court of Appeals then reversed the trial court. See Hammond v. Carnett’s, Inc., 266 Ga. App. 242, 596 S.E.2d 729 (2004). This represented the first time in history that the Georgia Court of Appeals had reversed a trial court’s ruling denying class certification. Fortunately, the Georgia Supreme Court accepted certiorari and ultimately reversed the Court of Appeals thereby reinstating the trial court’s ruling that class certification was not justified. Carnett’s Inc. v. Hammond, 279 Ga. 125, 610 S.E.2d 529 (2005)
Last offer/ Last demand: Plaintiff demanded $10 million policy limits. No formal offers from Defendant
Result: $1,500 settlement following appeals
Court: State Court of Gwinnett County, Georgia
Attorneys: Richie Foster for defendants; Marc Hershovitz and Roy Barnes for plaintiff