Chinitz v. Intero Real Estate Services

Background

Ronald Chinitz began this class action in 2018, alleging that Intero Real Estate Services violated the Telephone Consumer Protection Act and California’s Unfair Competition Law. The allegations concerned unwanted telephone solicitations to residential telephone lines that had been registered on the National Do Not Call Registry, as well as repeated calls after requests not to call back.

The court had certified a National Do Not Call class and an Internal Do Not Call class for injunctive relief. In April 2021, the court granted in part and denied in part the certified class’s motion for partial summary judgment, holding Intero vicariously liable for calls made by its corporate sales associates and agents based on apparent authority. The court denied Intero’s summary judgment motion except as to the Unfair Competition Law claim. The court later dismissed that claim and approved substituting Ruby Mitchell and Edward J. Kelly as class representatives.

The parties reached an agreement in principle in September 2021 and executed the settlement agreement on October 27, 2021. The settlement class covers people in the United States who received at least two qualifying calls to a residential telephone number, within a 12-month period, from or on behalf of a real estate salesperson responsible to Intero or Intero Referral Services, where the number had been on the National Do Not Call Registry for at least 31 days. The calls had to promote Intero’s goods or services, have records in specified Mojo Dialing Solutions account files, and occur since September 13, 2014.

Settlement and Notice

Each class member who submits a timely, valid approved claim will receive $350. The settlement also requires injunctive relief, including procedures designed to ensure compliance with the Telephone Consumer Protection Act’s do-not-call provisions and training for Intero representatives.

The settlement class involved 37,962 unique telephone numbers, although the exact number of individuals was unknown. The settlement administrator ultimately received 11,713 claims. Three people requested exclusion from the settlement class, and no objections were filed. The court had previously approved the notice plan and concluded that the notice provided was the best practicable under the circumstances.

Final Approval Analysis

The court reviewed the requirements for class certification under Federal Rule of Civil Procedure 23. It found that joining the thousands of class members individually would be impracticable, that common questions predominated, that the named plaintiffs’ claims were typical, and that Mitchell, Kelly, and class counsel adequately represented the class. The court also found that a class action was superior because individual recoveries were small and the case was manageable as a class action.

The court applied the factors used to assess whether a class settlement is fair, reasonable, and adequate. It found that further litigation involved risks, expense, complexity, and delay; that the $350 payment was substantial under the circumstances; that the parties had conducted sufficient discovery; and that class counsel supported the settlement based on their understanding of the case. The absence of government participation was neutral, while the lack of objections and only three exclusions supported approval. The court found that the settlement was not collusive and was fair, adequate, and reasonable.

Fees, Costs, and Service Awards

Class counsel requested $2,775,000 in attorneys’ fees and costs, consisting of $2,425,304.44 in fees and $349,695.56 in costs. The court found the costs necessary and the requested fees reasonable based on counsel’s documented time, hourly rates, and the litigation’s effort and complexity. A cross-check using the estimated value of the settlement also supported the award: the court calculated a constructive fund of approximately $11.4 million, making the requested fees and costs about 21 percent of that amount, below the 25 percent benchmark used in the Ninth Circuit.

Mitchell and Kelly each requested a $5,000 service award. The court found that they performed work typical of named plaintiffs, including meeting with attorneys, providing documents, assisting with case materials, preparing for and attending depositions, participating in a settlement conference, and preparing for possible trial appearances. The court approved a $5,000 service award for each of them.

Order

The court GRANTED Plaintiffs’ Motion for Final Approval of Class Action Settlement. It approved $2,775,000 in attorneys’ fees and costs for class counsel, approved a $5,000 service award for Mitchell and Kelly each, and approved the timely exclusion requests of Joseph Ponte, Hosea Colvin, and Ada Colvin.