Seven-Year Junk Fax Litigation Ends in $7M Settlement

TCPA Connect

A seven-year-old case involving allegedly illegal faxes may finally be coming to an end after a federal court judge granted preliminary approval to a $7 million deal.

In 2010, Avio Inc. filed suit against Alfoccino Restaurant, claiming that the eatery sent 13,975 advertisements to 7,649 fax numbers, offering “15% OFF Your Total Catering or Banquet Food Bill Up to $100.”

The years of litigation included two trips to the U.S. Court of Appeals for the Sixth Circuit, the first after the Michigan district court dismissed the suit for lack of subject matter. After the federal appellate panel reversed in 2012, the case took a second trip up to the Sixth Circuit over the question of whether the defendant was the “sender” of the faxes pursuant to the Telephone Consumer Protection Act (TCPA), with the court again siding with the plaintiffs.

The parties then reached an agreement. Class members—defined as a recipient of one or more of the coupon faxes on three dates in 2006 from Alfoccino Restaurant—are eligible to submit a claim.

After awarding a $15,000 incentive award for the named plaintiff, attorney’s fees of $2,329,166.67 plus expenses, and covering settlement notice and administration costs, a settlement fund of $6,987,500 provided by the restaurant’s insurer will pay class members up to $500 on a pro rata basis.

U.S. District Court Judge Victoria A. Roberts granted preliminary approval of the agreement, finding it to be “fair, reasonable, and adequate … in the best interests of the Settlement Class in light of the factual, legal, practical, and procedural considerations raised by this case.”

To read the settlement agreement in Avio, Inc. v. Alfoccino, Inc., click here.

To read the order preliminarily approving the deal, click here.

Why it matters: The parties’ seven-figure deal looks to bring an end to seven years of litigation that included two dismissals of the suit, appeals to the Sixth Circuit, and reversals in favor of the plaintiffs, with a chance for class members to walk away with up to $500 each, which is a high per-class award.



pursuant to New York DR 2-101(f)

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