Hooters, the Georgia-based chain of restaurants that made its name on hot-pants-clad waitresses, chicken wings and beer, has settled a class action suit by agreeing to provide up to $1.3 million in gift cards to about 55,000 people who received unwanted automated text messages.

Hooters also agreed to an injunction barring unsolicited messages to the class members in the future.

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The settlement also includes more than $440,000 in attorney fees and expenses for the lawyers who brought the case under the Telephone Consumer Protection Act: Carr & Weatherby partners W. Pitts Carr and Alexander Weatherby; Nicholas Panayotopoulos and Nancy Rigby of Weinberg Wheeler Hudgins Gunn & Dial; and Marietta solo David Ghattas.

Alex Weatherby of W. Pitts Carr & Associates, Atlanta. (Photo: Rebecca Breyer/ALM)

The settlement was tentatively reached last summer but was only approved by Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia on Feb. 2.

Weatherby said the number of class members represents “the number of folks that we contend did not expressly consent to receive that message.”

Those class members have been contacted, he said, “and we're in the process of sending everybody their gift cards. The court entered the injunction last week, so that's the close of it,” Weatherby said.

Hooters of America is represented by Taylor English Duma partner Alisa Cleek, Stanford Wilson of Elarbee Thompson Sapp & Wilson and Becca Wahlquist of Los Angeles' Snell & Wilmer.

On Thursday, Wahlquist said she did not have permission to discuss the case.

According to the complaint and other filings, Hooters retained marketing company State of Texts to run its “mClub” promotional campaign for about six years. Customers could “opt in” to receive text messages containing ads or promotional offers in accordance with the TCPA's requirement that a caller must have “prior express written consent” before making an automated call or text.

It also allowed them to rescind that permission by sending an “opt-out” text.

In late 2014, Hooters was preparing to switch to a new automatic messaging company and, according to the complaint, asked State of Texts for the entire database of phone numbers, including the opt-outs.

In emails quoted in the complaint, State of Texts warned a Hooters executive not to send messages to the numbers because it “will open up legal grounds” against Hooters for TCPA claims.

Nonetheless, it said, Hooters' new contractor used the database to text thousands of messages saying “our mClub has moved! Don't worry, you'll still receive exclusive news, just from a new number. Reply STOP to unsubscribe …”

Class representative plaintiff Michael Etzel had opted in to the mClub some time earlier but had also opted out before he received the Hooters text on Jan. 28, 2015.

Etzel emailed Hooters complaining about receiving the text despite having opted out and received a message from Hooters saying “the company we previously paid to do our text marketing provided us with an erroneous list of subscribers.” His name was removed, it said, apologizing for any inconvenience.

Etzel filed the lawsuit in April 2015.

Weatherby said Hooters continued to claim it was given a list that inadvertently contained the opt-outs, but a memorandum supporting the settlement stated that the parties engaged in settlement discussions throughout the course of the litigation.

According to the finalized settlement, two “tiers” of class members will receive the gift cards: Tier One members, who actively opted out of the program but were still included in the database, will receive $50 gift cards.

Tier Two members are those who never responded to a 2013 Hooters text requesting that they actively opt in after the Federal Communications Commission ruled that express consent to receive marketing messages was required under the TCPA. They will each get a $20 card.

The settlement also includes up to $120,740 to cover any cost overruns in administrative expenses. Any leftover money will be donated to the Atlanta Union Mission.