Gerstenhaber v. Galleria Fitness Club, LLC, d/b/a Powerhouse Gym Fort Lauderdale

Case No. 0:18-cv-62108-CMA (S.D. Fla.)

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Questions

Answers

1. What is a Class Action?

Answer:

In a class action, one or more people called class representatives (in this case, Daniel Gerstenhaber) sue on behalf of a group or a “class” of people who have similar claims. In a class action, the court resolves the issues for all class members, except for those who exclude themselves from the class.

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2. What is this litigation about?

Answer:

The lawsuit alleges that Defendants sent a text message to Plaintiff’s wireless telephone number about joining a fitness center without prior express written consent in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) and seeks actual and statutory damages under the TCPA on behalf of the named Plaintiff and a class of all individuals in the United States.

Defendants deny each and every allegation of wrongdoing, liability, and damages that were or could have been asserted in the litigation and that the claims in the litigation would be appropriate for class treatment if the litigation were to proceed through trial.

The Plaintiff’s Complaint, Settlement Agreement, and other case-related documents can be found under the "Documents" section of this website. The Settlement resolves the lawsuit. The Court has not decided the merits of the claims.



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3. What is the Telephone Consumer Protection Act?

Answer:

The Telephone Consumer Protection Act (commonly referred to as the “TCPA”) is a federal law that restricts telephone solicitations and the use of automated telephone equipment.

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4. Why is there a settlement?

Answer:

The Court has not found in favor of either Plaintiff or Defendants. Instead, both sides have agreed to a settlement. By agreeing to the Settlement, the parties avoid the costs and uncertainty of a trial, and if the Settlement is approved by the Court, Settlement Class Claimants will receive the benefits described in this Notice. Defendants denies all legal claims in this case. Plaintiff and his lawyers think the proposed Settlement is best for everyone who is affected.

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5. Who is included in the Settlement?

Answer:

The Settlement includes all persons who received a text message on their cell phone from Defendants. Specifically, the Settlement is defined as:

All individuals within the United States (i) who were sent and received a text message call (ii) on his or her cellular telephone (iii) by or on behalf of Defendants (iv) between June 16, 2017, the date of formation of Galleria Fitness, through March 12, 2019.

Persons meeting this definition are referred to collectively as the “Settlement Class” and, individually, as “Settlement Class Members.”

Excluded from the Settlement Class are: (i) the district judge and magistrate judge presiding over this case, the judges of the U.S. Court of Appeals for the Eleventh Circuit, their spouses, and persons within the third degree of relationship to either of them; (2) individuals who are or were during the Class Period agents, directors, employees, officers, or servants of Defendants or of any affiliate or parent of Defendants; (3) Plaintiff’s counsel and their employees, and (4) all persons who file a timely and proper request to be excluded from the Settlement Class.

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6. What if I am not sure whether I am included in the Settlement?

Answer:

If you are not sure whether you are in the Settlement Class or have any other questions about the Settlement, you can send an email using the "Contact" section of this website or call the toll-free number, 1-833-253-8060. You also may send questions to the Settlement Administrator at Gerstenhaber v. Galleria Fitness Club, c/o Settlement Administrator, P.O. Box 58158, Philadelphia, PA 19102-8158.

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7. What does the Settlement provide?

Answer:

To fully settle and release claims of the Settlement Class Members, Defendants have agreed to make payments to the Settlement Class Members and pay for notice and administration costs of the Settlement, attorneys’ fees and expenses incurred by counsel for the Settlement Class, and a service award for Plaintiff (the “Settlement Fund”). Each Settlement Class member who timely files with the Settlement Administrator a valid Claim Form will receive a check for up to $30.00 per text message call they received, less notice and administration costs, attorneys’ fees and expenses, and a service award.

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8. How do I file a Claim?

Answer:

If you qualify for a payment, you must complete and submit a valid Claim Form. You may download a Claim Form located under the "Documents" section, submit one by using the "Submit Claim" option, or request a Claim Form by calling the Settlement Administrator at 1-833-253-8060. To be valid, a Claim Form must be completed fully and accurately, signed under penalty of perjury, and submitted timely through the Settlement website or through mail postmarked June 5, 2019.

Please read the Claim Form carefully and provide all the information required. Only one Claim Form may be submitted per Settlement Class Member.

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9. When will I receive my payment?

Answer:

Payments to Settlement Class Members will be made only after the Court grants Final Approval to the Settlement and after any appeals are resolved. If there are appeals, resolving them can take time. Please be patient.

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10. How do I get out of the Settlement?

Answer:

To exclude yourself from the Settlement, you must send a timely letter by mail to:

Gerstenhaber v. Galleria Fitness Club

c/o Settlement Administrator

P.O. Box 58158

Philadelphia, PA 19102-8158

Your request to be excluded from the Settlement must be personally signed by you under penalty of perjury and contain a statement that indicates your desire to be “excluded from the Settlement Class” and that, absent of excluding yourself or “opting out,” you are “otherwise a member of the Settlement Class.”

Your exclusion request must be postmarked no later than May 20, 2019. You cannot ask to be excluded on the phone, by email, or at the Settlement Website.

You may opt out of the Settlement Class only for yourself.

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11. If I do not exclude myself, can I sue Defendants for the same thing later?

Answer:

No. Unless you exclude yourself, you give up the right to sue Defendants for the claims that the Settlement resolves. You must exclude yourself from this Settlement Class in order to pursue your own lawsuit.

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12. What am I giving up to stay in the Settlement Class?

Answer:

Unless you opt out of the Settlement, you cannot sue or be part of any other lawsuit against Defendants about the issues in this case, including any existing litigation, arbitration, or proceeding. Unless you exclude yourself, all of the decisions and judgments by the Court will bind you.


The Settlement Agreement is available during the "Documents" section of this website. The Settlement Agreement provides more detail regarding the Releases and describes the Released Claims with specific descriptions in necessary, accurate legal terminology, so read it carefully. You can talk to the law firms representing the Settlement Class listed in Question 15 for free, or you can, at your own expense, talk to your own lawyer if you have any questions about the Released Claims or what they mean.

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13. If I exclude myself, can I still get a payment?

Answer:

No. You will not get a payment from the Settlement Fund if you exclude yourself from the Settlement.

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14. Do I have a lawyer in the case?

Answer:

The Court has appointed the following lawyers as “Class Counsel” to represent all members of the Settlement Class.


Manuel S. Hiraldo, Esq.

Hiraldo P.A.

401 E. Las Olas Blvd., Ste. 1400

Fort Lauderdale, FL 33301


Ignacio J. Hiraldo, Esq

IJH Law

1200 Brickell Ave., Ste. 1950

Miami, FL 33131


Michael Eisenband, Esq.

Eisenband Law, P.A.

515 E. Las Olas Blvd., Suite 120

Fort Lauderdale, FL 33301


You will not be charged for these lawyers. If you want to be represented by another lawyer, you may hire one to appear in Court for you at your own expense.

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15. How will the lawyers be paid?

Answer:

Class Counsel intend to request $140,000.00, or up to approximately 23.33% of the value of the Settlement, for attorneys’ fees plus reimbursement of reasonable, actual out-of-pocket expenses incurred in the litigation. The fees and expenses awarded by the Court will be paid out of the Settlement Fund. The Court will decide the amount of fees and expenses to award. 

Class Counsel will also request that a Service Award of $5,000.00 be paid from the Settlement Fund to the Class Representative for his service as representative on behalf of the whole Settlement Class.

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16. How do I tell the Court if I do not like the Settlement?

Answer:

If you are a Settlement Class Member (and do not exclude yourself from the Settlement Class), you can object to any part of the Settlement. To object, you must timely submit a letter that includes the following:

1)  A heading that includes the case name and case number— Gerstenhaber v. Galleria Fitness Club, LLC d/b/a Powerhouse Gym Fort Lauderdale, Case No. 0:18-cv-62108-CMA (S.D. Fla.)

2)   Your name, address, telephone number, the cell phone number at which you received text messages from Defendants and if represented by counsel, the name, bar number, address, and telephone number of your counsel.

3)    A signed statement stating, under penalty of perjury, that you received one or more text message from Defendants and are a member of the Settlement Class.

4)    A statement of all your objections to the Settlement including your legal and factual basis for each objection.

5)    A statement of whether you intend to appear at the Final Approval Hearing, either with or without counsel, and if with counsel, the name of your counsel who will attend.

6)  The number of times in which your counsel and/or counsel’s law firm have objected to a class action settlement within the five years preceding the date that you file the objection, the caption of each case in which counsel or the firm has made such objection, and a copy of any orders related to or ruling upon counsel’s or the firm’s prior objections that were issued by the trial and appellate courts in each listed case.

7)  A list of all persons who will be called to testify at the Final Approval Hearing in support of the objection.

8)  Any and all agreements that relate to the objection or the process of objecting—whether written or verbal—between you or your counsel and any other person or entity.

If you wish to object, you must file your objection with the Court (using the Court’s electronic filing system or in any manner in which the Court accepts filings) and mail your objection to each of the following three (3) addresses, and your objection must be postmarked by May 20, 2019.


Clerk of the Court

Class Counsel

Defendant’s Counsel

United States District Court for the Southern District of Florida

400 N. Miami Ave

Miami, FL 33128

 

Manuel S. Hiraldo, Esq.

Hiraldo P.A.

401 E. Las Olas Blvd., Ste. 1400

Fort Lauderdale, FL 33301

 

Maria Vigilante, Esq.

Blank Rome LLP

500 East Broward Blvd.

Suite 2100

Fort Lauderdale, FL 33394

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17. What is the difference between objecting and asking to be excluded?

Answer:

Objecting is telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you do not exclude yourself. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you have no basis to object to the Settlement because it no longer affects you.

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18. When and where will the Court decide whether to approve the Settlement?

Answer:

The Court has scheduled a Final Approval Hearing on June 12, 2019 at 9:00 a.m. at the Wilkie D. Ferguson, Jr. United States Courthouse, 400 North Miami Avenue Room 12-2, Miami, Florida 33128. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check this website for updates. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider the requests by Class Counsel for attorneys’ fees and expenses and for a Service Award to the Class Representative. If there are objections, the Court will consider them at that time. After the hearing, the Court will decide whether to approve the Settlement. It is unknown how long these decisions will take.

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19. Do I have to attend the hearing?

Answer:

No. Class Counsel will answer any questions the Court may have. But, you are welcome to attend the hearing at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you submitted your written objection on time to the proper addresses and it complies with all the other requirements set forth above, the Court will consider it. You may also pay your own lawyer to attend the hearing, but it is not necessary.

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20. May I speak at the hearing?

Answer:

You may ask the Court for permission to speak at the Final Approval Hearing. To do so, your timely filed objection must include a statement of whether you intend to appear at the Final Approval Hearing (see Question 15 above).

You cannot speak at the hearing if you exclude yourself from the Settlement.


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21. What happens if I do nothing at all?

Answer:

If you are a Settlement Class member and do nothing, meaning you do not file a timely Claim, you will not get benefits from the Settlement. Further, unless you exclude yourself, you will be bound by the judgment entered by the Court.

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22. How do I get more information?

Answer:

You can get a copy of the Settlement Agreement in the 'Documents' section of this website. You also may write with questions to the Settlement Administrator: Gerstenhaber v. Galleria Fitness Club, c/o Settlement Administrator, P.O. Box 58158, Philadelphia, PA 19102-8158, or call the toll-free number, 1-833-253-8060.

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This website is authorized by the Court, supervised by counsel and controlled by, the Settlement Administrator approved by the Court. This is the only authorized website for this case.

For more information please call 1-833-253-8060

Documents

Please read for a full explanation of the settlement and your options and all applicable timelines.

Contact

Contact us with any inquiries, comments, and/or requests.

Submit Claim

Click here to safely and securely submit a Claim Form.

Important Dates

  • Exclusion Deadline

    Monday, May 20, 2019 You must mail your request for exclusion form so that it is postmarked no later than May 20, 2019.
  • Objection Deadline

    Monday, May 20, 2019 You must mail or serve your objection and/or notice of intent to appear at the Final Approval Hearing so that it/they are postmarked no later than May 20, 2019
  • Claim Form Deadline

    Wednesday, June 5, 2019 Your Claim Form must be completed fully and accurately, signed under penalty of perjury, and submitted timely through the Settlement website or through mail postmarked by June 5, 2019.

Important Documents

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