Between October 2012 and June 2013, the named plaintiffs initiated separate putative class actions throughout the country alleging that Convergent violated the TCPA. On November 5, 2013, the Judicial Panel on Multidistrict Litigation consolidated the actions as an MDL. According to the Consolidated Amended Complaint, Convergent called Plaintiffs and the putative class members without their consent using an automatic telephone dialing system (“ATDS”) on behalf of various creditors.
The settlement consists of two classes:
- A Rule 23(b)(3) damages class that includes several hundred thousand people that Convergent called after October 26, 2008 who can point to certain objective facts to argue Convergent lacked consent to call them. This class will share a $5.5 million common fund.
- A Rule 23(b)(2) injunction class that includes those persons not in the Rule 23(b)(3) damages class who Convergent called since October 26, 2008. These individuals retain their right to sue Convergent individually but waive their right to bring a class action. In exchange, Convergent agreed to an injunction prohibiting it from seeking to dismiss any TCPA claim for failing to plead an ATDS was used and, in any answer to such suit, it will admit that it used an ATDS.
No objections were filed to the settlement, and only twenty-three class members opted out. A final approval hearing was scheduled for November 10.