Andrew Shamis of Shamis & Gentile in Miami. Courtesy photo. Andrew Shamis of Shamis & Gentile in Miami. Courtesy photo.

A team of South Florida attorneys negotiated a $5 million settlement with West Palm Beach car dealership Schumacher Automotive Inc., accused of sending more than 58,000 marketing text messages that violated the Telephone Consumer Protection Act.

“That's 58,000 people who've looked at their phone and were like, 'Why the heck is this company texting me?'” said Andrew Shamis of Shamis & Gentile in Miami, who represents plaintiff Jerry Eisenband.

Eisenband filed his complaint July 11, 2018, spending less than a year in litigation.

Shamis worked with Scott Edelsberg of Edelsberg Law in Aventura and Manuel Hiraldo of Manuel Hiraldo P.A. in Fort Lauderdale to sue on behalf of everyone allegedly included in the marketing blasts.

Congress passed the TCPA in 1991 to restrict unwanted telemarketing, making it a violation for businesses to call or text consumers without their consent. Texting has become the go-to medium for businesses looking for new customers, according to Shamis, who's made it his mission to clamp down on unsolicited messages.

“Back then you couldn't make 100,000 calls at once,” Shamis said. “Now, you can press a button and send it to 100,000 peoples' personal cell phones.”

Plaintiff counsel Hiraldo deposed the dealership's corporate representatives to flesh out its marketing techniques and decipher how many text messages were sent, while Shamis and Edelsberg managed the case and its briefs.

Click here to read the complaint

Schumacher Automotive denied liability. After an internal investigation, defense attorney Craig H. Blinderman of Kurkin Forehand Brandes in Aventura claimed to have found the source of the problem.

According to Blinderman, a “rogue employee” got hold of the company's customer list and used them in CallFire, a third-party mass text messaging platform. The texts featured deals for buying and leasing cars, and though they appeared to be from the director of the dealership's business development center, Blinderman said management had no idea.

“This rogue put this information out there, the text messages appeared to have gone out after a thorough investigation and we had to defend the case accordingly,” Blinderman said.

That revelation meant defenses were limited, the way Blinderman saw it, and the amount damages and attorney fees against his client would be “astronomically larger” than any settlement.

“It was a business decision by my client to settle this case, which he frankly had to pinch his nose in order to do,” Blinderman said. “But the reality was, given the legal analysis, this was the best way to mitigate his damages.”

The employee was fired, Blinderman said.

U.S. District Judge Beth Bloom in the Southern District of Florida signed off on the settlement, giving $180 to every class member — a significant amount, Shamis said, considering $500 is the maximum they could have secured in court.

Attorney fees make up 25%, or $1.25 million, of the $5 million award.

In Shamis' view, the defendant's appreciation for TCPA made the case a success story.

“It was apparent throughout litigation they took the TCPA very seriously,” Shamis said. “They understood how important the TCPA is and, as far as defendants go, they understood what was going on and they were trying to abide by the law in every way possible.”

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No matter what a company is selling, Shamis said he worries that every time the TCPA is breached without penalty it chips away at the privacy of individuals.

“If you don't stop telemarketing text messages like this, the amount of text messages you would get would explode,” Shamis said.

It's been a pet peeve for as long as Shamis can remember.

“Back in 1992, they're not sending text messages but you're sitting at the dinner table and you'd get 100 phone calls, and your mom and dad would have to get up from the table and say they're not interested,” he said.

Shamis said his client is ecstatic, and not just about the money.

“A lot of people don't like spam texts and they don't like spam calls,” Shamis said. “So when you get a good result, it kind of feels like a win for the good guys.”

Read the settlement agreement:

 

Case: Jerry Eisenband v. Schumacher Automotive

Case No.: 9:18-cv-80911-BB

Description: TCPA class action

Filing date: July 11, 2018

Settlement date: July 1, 2019

Judge: U.S. District Judge Beth Bloom in the Southern District of Florida

Plaintiffs attorneys: Andrew Shamis, Shamis & Gentile, Miami; Scott Edelsberg, Edelsberg Law, Aventura; Manuel Hiraldo, Manuel Hiraldo, Fort Lauderdale

Defense attorney: Craig H. Blinderman, Kurkin Forehand Brandes, Aventura

Settlement amount: $5 million

 

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