Schwyhart v. AmSher Collection Services, Inc., No. 2:15-cv-1175-JEO (N.D. Ala. Oct. 19, 2016)
Mr. Schwyhart filed this lawsuit against AmSher, alleging that AmSher violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, when calling consumers on their cellular telephones, via an automatic telephone dialing system or an artificial or prerecorded voice, without their consent. AmSher denies Mr. Schywhart's allegations, but has agreed to the settlement.The Injunctive Class is defined as:
All individuals who, between July 13, 2011 through aOctober 19, 2016 (i.e., the Class Period), were called by AmSher on their cellular telephones, or any other service for which the individual was charged, with equipment alleged to be an automatic telephone dialing system, or allegedly with an artificial or pre-recorded voice, where it is alleged there was no prior express consent to make the call.
The Damages Subclass is defined as:
The individuals identified in the Damages Class List who, between May 1, 2015 and July 31, 2015, received a telephone call from AmSher to a cellular telephone, or any other service for which the called party was charged, made with equipment alleged to be an automatic telephone dialing system, or allegedly with an artificial or pre-recorded voice, where it is alleged there was no prior express consent to make the call, as identified by AmSher’s records.
- Before calling any telephone number, AmSher will use reasonable means to search and scrub all such numbers to determine whether a given number is a cellular number and will keep a record of all such numbers identified as cellular numbers.
- AmSher will not use an ATDS to call any telephone number shown to be assigned to a cellular telephone service unless AmSher has consent from the subscriber, owner or regular user of the cellular phone. Express consent includes any written or verbal consent provided to AmSher, or its client, by the subscriber, owner or regular user of the cellular telephone to be called with an ATDS.
- When obtaining consent directly from the consumer, AmSher will, in a uniform manner, record in its account management system all consent it receives to call a cellular telephone number using an ATDS directly from a consumer, and retain all such documents or records of consent for a period of no less than twelve months. Consent must be confirmed to AmSher by a person representing themselves as the owner or regular user of the cellular telephone number, or a third party authorized to provide such consent.
- Any express consent AmSher obtains and documents will be limited to calls placed, or caused to be placed, by AmSher for purposes of collecting a debt alleged due to one of AmSher’s clients.
- AmSher will design and institute a training program devoted to ensuring compliance with the TCPA, including materials describing express consent, the manner in which AmSher can obtain express consent, the manner in which employees must document express consent, and the circumstances under which AmSher may contact an alleged debtor by using an ATDS.
- AmSher also will implement a policy and procedure to assist employees identify and document wrong or reassigned numbers and cease calls requests to cellular telephone numbers.
- AmSher will maintain a compliance manager responsible for, among other things, implementing and overseeing AmSher’s TCPA compliance.
- On a quarterly basis, for a period of two years, AmSher will create and store a report outlining its compliance and alleged non-compliance with the TCPA, including all cellular telephone numbers AmSher is alleged to have called with an ATDS without prior express consent. AmSher will make the reports available to Mr. Schwyhart and his counsel upon request.
The Court preliminarily approved the settlement on October 19, 2016, and granted final approval on March 16, 2017.