Rita's Rita's

A federal judge has ruled that because there are fewer valid claimants in a Telephone Consumer Protection Act class action against Rita’s Water Ice than originally anticipated, each will get a larger share of the $3 million settlement fund.

The class action was filed in 2015 by Sherry Brown and Ericka Newby. The two claimed that Rita’s sent them “Cool Alerts” text messages announcing when certain water ice flavors and other products were available at local stores.

They alleged that the lists were generated using a database of telephone numbers that the owners did not provide to Rita’s. They also claimed that they kept receiving messages after texting “STOP” in response to the texts’ instructions to stop receiving future notifications.

U.S. District Judge Timothy Savage of the Eastern District of Pennsylvania wrote in his opinion that there were fewer class members with valid claims than previously thought—10,164 to the anticipated 28,523—due to an error on the part of the settlement administrator.

“The settlement administrator should have conducted the full review of the claim forms as soon as the claim filing deadline passed instead of waiting for the final approval order to be issued,” Savage wrote. “However, because the eligible class members will receive a greater benefit, we shall grant the motion and supplement the findings of fact to reflect the correct number of valid claim forms submitted.”

Stephen F. Taylor of Lemberg Law, an attorney for the plaintiffs, said in an email, “We are moving forward with the court-approved distribution plan to disperse the class settlement.”

John M. Doroghazi of Wiggin and Dana, who represents Rita’s, did not respond to a request for comment.

Earlier in the litigation the plaintiffs attorneys were awarded a sizable fee, though not as much as they had wanted.

On March 16, Savage granted class counsel’s request for $40,000 in expenses and $10,000 in incentive awards, but denied their request for $1 million in legal fees, instead awarding them $651,000. That reduced fee represents roughly 22 percent of the litigation’s settlement fund.

“The amount each class-member claimant will receive is not significant, but rather modest,” Savage said in his March ruling, adding, “Counsel claim that they extracted the largest settlement possible for the class in light of Rita’s ability to pay. Yet, rather than adjust the attorney fees to increase the amount available to the class, counsel propose a lesser recovery for the class members.”