Preman, et al. v. Pollo Operations, Inc.

Case No. 6:16-cv-00443-Orl-41GJK

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA,
ORLANDO DIVISION

Frequently Asked Questions


BACKGROUND OF THE CASE

1. Why was there a Notice?

A Court authorized the Notice because Class Members have a right to know about a proposed Settlement of this class action lawsuit, and about all of your options, before the Court decides whether to give final approval to this Settlement. The Notice explains the lawsuit, this Settlement, and your legal rights.

The Court will hold a Final Settlement Approval Hearing at the George C. Young United States Courthouse Annex, 401 West Central Boulevard, Orlando, Florida 32801, Courtroom 5B on August 9, 2018 at 9:30 am, to determine whether the Settlement should be finally approved as fair, reasonable, and adequate.

2. What is this Lawsuit about?

Plaintiff filed this class action lawsuit against Pollo Operation, Inc. (“Defendant”) alleging that it violated the federal Telephone Consumer Protection Act (“TCPA”). Defendant denied Plaintiff’s allegations and moved to dismiss the allegations. The parties have agreed to settle all claims about advertising text messages Defendant allegedly caused to be delivered to recycled numbers without consent.

Without admitting any fault or liability, and in exchange for a release of all claims against it, Defendant has agreed to the Settlement.


SUMMARY OF THE SETTLEMENT

3. Who is included in the Settlement?

You are a Class Member, and are included in the Settlement, if you are a person who received text messages on behalf of Pollo Operations from March 1, 2012 to March 15, 2017 to telephone numbers that had been reassigned to them after the original or prior owners of the telephone numbers consented to receive such text messages from Pollo Operations, who did not consent to receive such text messages, and who can be identified through the reverse telephone number look-up process utilized by the Settlement Administrator (“Settlement Class”).

Excluded from the Settlement Class are: (a) Defendant and its present and former officers, directors, employees, shareholders, insurers, and their successors, heirs, assigns, and legal representatives; and (b) the Court and members of the Court’s staff.

4. How Do I Receive Money From the Settlement?

In order to receive a payment from the Settlement, you must either return a claim form by mail to the Settlement Administrator at: Preman v. Pollo Operations, Settlement Administrator, 1801 Market Street, Suite 660, Philadelphia, PA 19103, or you can file a claim online by clicking here.

If you return or file the claim form, you will be removed from any Pollo Tropical text messaging list and will be required to enroll in Pollo Rewards in order to receive future Pollo Tropical coupons.

5. What will I receive from the Settlement?

If the Settlement is finally approved, Defendant has agreed to make up to $975,000.00 (the “Settlement Fund) available to pay those Class Members who submit a proper and approved claim form, to pay a service award to Plaintiff for serving as the class representative, and to pay attorneys’ fees and expenses to Plaintiff’s attorneys.

If the Court approves the settlement, each Settlement Class Member who submits a timely and valid claim form will be paid $50.00 regardless of the number of text messages received, subject only to a pro rata reduction in the event that the claims and other payments approved herein otherwise would exceed the total Settlement Fund. If more than one Settlement Class Member is validated for a single telephone number, the total amount payable for such telephone number shall still not exceed $50.00.

6. When will I receive my Settlement Payment?

If you submit a timely and valid claim form, you will receive payment of your Individual Settlement Amount after the “Effective Date” of the Settlement, which will occur after the later of: (a) the date the Court enters the Final Judgment, substantially in the form of Exhibit A-1 to Plaintiff’s Memorandum, or in a form agreed to by the Parties, dismissing with prejudice the claims of all Settlement Class Members (including Plaintiff) who do not properly exclude themselves as provided in this Notice; or (b) if any Settlement Class Member objected to the Settlement, the date on which the date for filing an appeal has expired or, if there are appeals, the date on which the Settlement and judgment have been affirmed in all material respects by the appellate court of last resort to which such appeals have been taken and such affirmances are no longer subject to further appeal or review.

7. How do I Opt Out or Exclude myself from the Settlement?

You are not required to participate in the Settlement. You have the right to exclude yourself from the Class and the Settlement by sending a written request for exclusion. Your completed, signed statement advising of your election to opt out must be postmarked no later than June 25, 2018. If your request is not postmarked by that date, your right to opt out will be deemed waived and you will be bound by all orders and judgments entered in connection with the Settlement. Your request must list your name, street address, telephone number, and the name and number of this case, and it must indicate your request for exclusion (for example, “Exclude me from the Preman/Pollo Settlement”). You must send your request to the following recipients, and they will inform the Court of your request.

Class Counsel Defendant’s Attorney Settlement Administrator

John Yanchunis

Morgan & Morgan

201 N. Franklin Street, 7th Floor

Tampa, FL 33602

Jeffrey J. Mayer

Akerman LLP

71 S. Wacker Dr., 46th Floor

Chicago, IL 60606

Class Action Opt Out and Objections

ATTN: Pollo Text Settlement

PO BOX 30456

Philadelphia, PA 19103

8. How do I Object to Settlement?

If you object to the Settlement and wish to file an objection rather than simply excluding yourself, you must file a written objection with the Clerk of the United States District Court for the Middle District of Florida, Orlando Division, 401 West Central Boulevard, Orlando, Florida 32801. Your objection must be postmarked by June 25, 2018 and must refer to the name and number of this case. You must also serve copies of your objection on Class Counsel, Defendant’s attorney and the Settlement Administrator (at the addresses in ), postmarked by the same date.

Your objection must include:

1. Your name;

2. Your telephone number;

3. Your street address;

4. All attorneys who assisted you in the preparation and filing of your objection;

5. A list of all other class action cases in which you or your counsel have filed objections to Settlements; and

6. A statement of the reasons why you believe the Court should find that the proposed Settlement is not the best interests of the Class. It is not sufficient to simply state that you object; you must state the reasons why you believe the Settlement should not be approved.

You may also appear at the final approval hearing in Room 5B, on August 9, 2018 at 9:30 a.m. You are not required to attend this hearing.

9. Release of Claims.

Upon the Effective Date of the Settlement, all Settlement Class Members, including Plaintiff, who do not opt out of the proposed Settlement Class (“the Releasors”) as required in the Notice, for and in consideration of the terms and undertakings herein, the sufficiency and fairness of which are acknowledged, release and forever discharge Defendant and the Interested Non-Party and each of their current and former parents, predecessors in interest, assignors in interest including the Interested Non-Party’s assignor in interest, Epio Data, LLC, formerly known as Beanstalk Data, LLC, successors, subsidiaries, affiliates, controlled companies, and each of their officers, directors, shareholders, employees, assigns, agents, vendors, and attorneys (the “Released Parties”) from any and all claims, demands, debts, liabilities, actions, causes of action of every kind and nature, obligations, damages, losses, and costs, whether known or unknown, actual or potential, suspected or unsuspected, direct or indirect, contingent or fixed, that have been, could have been, or in the future might be asserted that arise out of or relate to Defendant’s or the Interested Non-Party’s transmission of text messages between March 1, 2012 and March 15, 2017 (the “Released Claims”). Further, as a material element of this settlement, all Settlement Class Members, including Plaintiff, for and in consideration of the terms and undertakings herein, the sufficiency and fairness of which are acknowledged, release and forever discharge all other persons or entities and each of their current and former parents, subsidiaries, affiliates, controlled companies, officers, directors, shareholders, employees, predecessors, successors, assigns, agents, vendors, and attorneys from any and all claims, demands, debts, liabilities, actions, causes of action of every kind and nature, obligations, damages, losses, and costs, whether known or unknown, actual or potential, suspected or unsuspected, direct or indirect, contingent or fixed, that have been, could have been, or in the future might be asserted that arise out of or relate to or are involved in the transmission of text messages to Recycled Numbers.

If any of the Releasors reside in California or are otherwise subject to California law, then such Releasors hereby waive all rights under Section 1542 of the Civil Code of California. That section reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Notwithstanding the provisions of Section 1542 or any similar law of any other state, and to provide a full and complete release of Released Parties, the Releasors expressly acknowledge that this Settlement is intended to include, without limitation, in addition to the Released Claims, all claims which the Releasors do not know or suspect to exist in their favor at the time of execution of this document, and agree that the settlement agreed upon completely extinguishes all such claims.

This release does not apply to actions brought by the government.

If the Settlement is not approved by the Court or does not become final for some other reason, the litigation will continue.

10. The Class Representative.

The Court has preliminarily appointed Plaintiff Mark Preman as the Class Representative in this Action. As part of the Settlement, Plaintiff shall be paid from the Settlement Fund, a service award of $5,000.00 for his service on behalf of the Class in this litigation. This payment will be deducted from the Gross Settlement Amount.

11. Attorneys’ Fees and Costs.

Mark Preman is the Class Representative. His attorneys are Class Counsel. They are: John Yanchunis and Jonathan Cohen, Morgan & Morgan Complex Litigation Group, 201 N. Franklin Street, 7th Floor, Tampa, FL 33602.

Defendant has agreed that Class Counsel will be paid attorneys’ fees totaling 25% of the Settlement Fund plus litigation costs and expenses in the amount of $5,000 from the Settlement Fund. All fees and costs of the settlement administration will also be paid from the Settlement Fund.

As a member of the Class, you will not be separately responsible for the payment of attorneys’ fees or reimbursement of litigation expenses unless you choose to retain your own counsel separate from Class Counsel.

12. The Settlement Administrator and Administrative Expenses

The Court has appointed a Settlement Administrator to handle the notice and Settlement administration process. The Settlement Administrator will process claims, requests for exclusion, transmit payments under the Settlement, and perform tasks that are usual and customary in administrating a class action Settlement. The costs of administering the Settlement will be deducted from the Gross Settlement Amount.


FINAL SETTLEMENT APPROVAL HEARING

13. When and where will the Court decide whether to approve the Settlement?

The Court will hold a Final Settlement Approval Hearing on August 9, 2018, at 9:30 am, in Room 5B, George C. Young United States Courthouse Annex, 401 West Central Boulevard, Orlando, Florida 32801, and hear any timely and properly-filed objections and arguments about the Settlement.

You are not required to attend this hearing. The fairness hearing may be continued to a future date without further notice. Please check this website prior to making plans to attend the hearing.


V. GETTING MORE INFORMATION

14. How do I get more information about the Settlement?

These FAQs contain a summary of the basic terms of the Settlement. For the precise terms and conditions of the Settlement, you are referred to the Settlement Agreement, which is available on the Important Documents page of this website and on file with the Court. The pleadings and other records in this litigation, including the Settlement Agreement, may be examined at any time via the Courts website www.pacer.gov or during regular business hours in the Clerk of the United States District Court for the Middle District of Florida, Orlando Division, 401 West Central Boulevard, Orlando, Florida 32801.


You may also contact the Settlement Administrator by:

MAIL:
Preman v. Pollo Operations
1801 Market Street, Suite 660
Philadelphia, PA 19103

EMAIL:PolloTextSettlement@AdministratorClassAction.com

Alternatively, you also may contact Class Counsel (listed below) for more information:

MAIL:
John Yanchunis
Morgan & Morgan
201 N. Franklin Street, 7th Floor
Tampa, FL 33602

Telephone: (813) 223-5505


PLEASE DO NOT TELEPHONE THE COURT OR DEFENDANT’S COUNSEL FOR INFORMATION REGARDING THIS SETTLEMENT!

If you move, please send the Settlement Administrator your new address. It is your responsibility to keep a current address on file with the Settlement Administrator to ensure receipt of your Settlement payment.