TCPAWorld
The World of the Telephone Consumer Protection Act
So AdaptHealth just settled a TCPA case for about $7MM (I think) and this is just a weird settlement, for a couple of reasons.
First, let’s acknowledge that AdaptHealth was just featured on TCPAWorld like two days ago for making a blunder in a different TCPA case. That mistake may have cost TCPAWorld a clear shot to challenge a soon-to-be-issued FCC ruling. No biggie.
But apparently AdaptHealth has made a couple of other TCPA-related mistakes lately.
In Desouza v. Defendants AdaptHealth Corp. (“AdaptHealth”) and AeroCare Holdings (“AeroCare”) 2023 WL 5434712 (M.D. Fl. Aug. 7, 2023) AdaptHealth apparently failed to heed stop requests from consumers in response to text messages it was sending out.
Specifically, 32,035  folks apparently received approximately 220,000 text messages after asking for texts to stop.
That is just plain not good.
The class definition was:
Since November 23, 2018, all persons to whose telephone number the AdaptHealth Parties initiated, or
had initiated on their behalf, more than one text message in a 12-month period for the purpose of inviting
the recipient to order CPAP supplies, after the recipient had replied “stop” or its equivalent to one of the
AdaptHealth Parties’ text messages.
So text messages to sell CPAP supplies resulted in a massive TCPA exposure when, apparently, AdaptHealth failed to honor stop messages.
Weird and bad. But tech glitches do happen, I suppose.
But things get weirder still.
The settlement structure here is unusual. Usually in TCPA class actions a settlement is a common fund–meaning all sums to be paid come out of a single sum to be paid by the defendant.
AdaptHealth did it differently for some reason. First, they agreed to pay $160.00 to each Plaintiff on a claims made basis. That means they may be on the hook for over $5MM just for payments to class members (although they may end up paying much less depending on how many claims are made.)
But then they are going to pay another sum on top of that to compensate the Plaintiffs lawyers. That amount is not set yet but it looks to be over $1MM.
Eesh.
And another weird thing– who the Plaintiff’s lawyers are.
This isn’t the Wolf, or the Godfather, or anybody else on the top 10 here.
Class counsel here is Jeremy M. Glapion, Esq. and Bradford R. Sohn, Esq.
I mean, these are decent fellows but they aren’t exactly the murderer’s row of TCPAWorld. But definitely good enough to win, it would seem.
Another weird thing is the limited release. Usually a TCPA defendant paying millions of dollars will get a nice big fat broad release of a whole bunch of claims available to a whole bunch of people. Here, seemingly, not so much. The Court notes the release at issue is limited to claims “that relate to or arise out of the Post-Stop texts that were sent during the Class Period.”
So that’s it huh. $6MM and the class members can still sue you for other claims?
Eesh.
But the last–and weirdest–thing is that this is a text message case. So some people might be thinking–after Facebook and after the FTSA amendments, why would AdaptHealth agree to pay so much here? It is odd. But remember these were all individuals who should have been put on the internal DNC list and were not. So there is value to settling the claims but I am not sure there is a private right of action in this context absent evidence AH also did not have a DNC policy (if it did there should have been a complete good faith defense.) So.. yeah…weird.
Regardless, that last point drives a big take away here– even if you are using text messaging (which remains the safest channel) you still need to be honoring text messages effectively. Failing to do so can still be extremely costly.
I am quite certain AdaptHealth did not intentionally ignore consumer’s asking for texts to stop. It was undoubtedly a glitch somewhere. But the TCPA is a strict liability statute in most respects. So you need to be extremely cautious. Still though good policies and practices and keep you out of multi-million dollar trouble.
If you’re concerned here a few quick tips:
Chat soon TCPAWorld.
The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues. View all posts by Eric J. Troutman
Glad to see AdaptHealth have to pay. So many SMS texters seem to ignore STOP requests. If enough have to pay, maybe then they will learn their lesson. The only bad part is I hate seeing the attorneys pocketing so much of the money, as opposed to the victims.

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