Plaintiffs Want TracFone Class Action Settlement Delayed

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In February, plaintiff John Browning filed a motion for preliminary approval of a class action settlement with Wal-Mart Stores Inc., TracFone Wireless Inc. and a number of other defendants who allegedly “throttled” the data usage for cell phones advertised as having an unlimited service plan. Subsequently, several plaintiffs from similar class action lawsuits currently pending in California have intervened, seeking to dismiss or stay the litigation. However, the Florida class is urging the judge to preliminarily approve the Wal-Mart/TracFone settlement.

The class action lawsuits allege that the some of the “unlimited” data plans offered by TracFone were actually subject to a number of limitations that were not adequately disclosed to consumers, resulting in the suspension or throttling of data services.

On Wednesday, plaintiffs in three putative class action lawsuits in California sought to intervene in the Florida class action lawsuit, criticizing the proposed TracFone settlement agreement. According to their motion to intervene, David Hansell had filed a nearly identical class action lawsuit against Wal-Mart and TracFone in California federal court. They allege that Hansell’s action was already pending at the time the Florida class action lawsuit was filed. Further, the Hansell action proposed a nationwide class while the Florida action was limited to Florida residents. The Florida lawsuit has since been expanded to include a nationwide class.

“To avoid duplicative effort, judicial waste, and the potential for inconsistent rulings, it is critical that the Court dismiss or stay this action,” the intervenors say. They claim that the defendants previously attempted to have the Hansell case transferred to Florida, but their motion was denied.

“The Hansell Court not only denied Defendants’ motion to transfer, but has also set a briefing schedule and hearing on Defendants’ anticipated arbitration motion and ordered that discovery proceed on liability issues, making clear that the litigation in the Northern District of California will proceed no matter what occurs in this litigation,” states the motion to intervene. “Thus, the best way to avoid judicial waste and potentially conflicting rulings is to dismiss or stay this case pursuant to the first-filed rule.”

The California TracFone unlimited data lawsuits are currently being overseen by U.S. District Judge Edward M. Chen and may eventually be consolidated.

The Florida class quickly responded to the motion to intervene and pushed for the preliminary approval of the TracFone unlimited data settlement. According to the attorneys in the Florida action, “the ‘first-filed’ rule does not favor the California actions because the present case was the first with respect to three out of the Defendants’ four brands of unlimited cell phone plans. More importantly, case law makes clear that the ‘first-filed’ rule should yield in the face of a proposed settlement that will resolve all of the litigation.”

Attorneys for the Florida class also cautioned that there was no guarantee that the Telcel America customers who serve to benefit from the Florida class action settlement will be participants in the California action. “Thus, an order dismissing or staying the present case will potentially deny benefits to over 600,000 Telcel America customers.”

Browning is represented by John Yanchunis and J. Andrew Meyer of the Complex Litigation Group of Morgan and Morgan.

The intervenors are represented by Michael W. Sobol, Roger N. Heller and Nicole D. Reynolds of Lieff Cabraser Heimann & Bernstein LLP, Robert C. Gilbert, Daniel M. Hattis of Hattis Law and Cornelius P. Dukelow of Abington Cole.

The Florida Wal-Mart TracFone Class Action Lawsuit is John Browning, et al. v. TracFone Wireless Inc., et al., Case No. 1:13-cv-2282-MGC, in the U.S. District Court for the Southern District of Florida.

The California Wal-Mart TracFone Class Action Lawsuits are Hansell, et al. v. TracFone Wireless Inc., et al., Case No. 4:13-cv-03440; Blaqmoor v. TracFone Wireless Inc., Case No. 3:13-cv-05295; and Gandhi, et al. v. TracFone Wireless Inc., Case No. 13-cv-05296, all in the U.S. District Court for the Northern District of California.

UPDATE: The TracFone class action settlement received final approval on July 2, 2015.

UPDATE 2: According to the settlement administrator, the Tracfone class action settlement will become effective on Aug. 1, 2015 and checks will be mailed by Oct. 20, 2015.

UPDATE 3: Settlement checks were mailed out to Class Members starting on Mar. 22, 2016 through Mar. 29, 2016. According to the settlement administrator, Class Members must cash their refund checks no later than July 20, 2016.