RICHARD SEEBORG, District Judge.
Plaintiffs, Angelina Freitas, Rebecca Lyon and Maresa Kendrick ("Plaintiffs") and Defendants, Bounceback, Inc., Check Connection, Inc., Stone Fence Holdings, Inc., and Gale Krieg ("Defendants") hereby stipulate and request that Court issue an Order staying the case pending preliminary and final approval of a proposed class-wide settlement in a related action.
1. The Plaintiffs in this matter challenge the Defendants' operation of "Check Enforcement Programs" under the Fair Debt Collection Practices Act and the California Unfair Competition Law. This case is brought on behalf of a proposed class of California consumers in Lake, Mendocino, Plumas, San Benito, Sutter, and Yuba counties (Dkt. No. 35).
2. Defendants have answered the Plaintiffs First Amended Complaint. The Plaintiffs and Defendants have exchanged Initial Disclosures. There are no pending motions.
3. Plaintiffs' counsel represent a proposed class of Washington state consumers who filed a similar action captioned Cavnar et al. v. BounceBack, Inc., et al., No. 2:14-cv-00235 in the United States District Court for the Eastern District of Washington (see Dkt. No. 37 ¶ 10). The Cavnar action was filed more than a year before this action was filed.
4. The parties to this action and the Cavnar action have reached a proposed global settlement of both actions (see Exhibit A (Settlement Agreement).) In accord with the Settlement Agreement, Plaintiffs in the Cavnar action have filed a second amended complaint that includes the proposed class of California consumers and are seeking preliminary and final approval of the proposed class-wide settlement in the Eastern District of Washington. Exhibit A § 1.5. The parties advised this Court of the settlement via an email to the courtroom deputy on December 28, 2015.
5. Plaintiffs filed their unopposed motion for preliminary approval of the proposed settlement in the Cavnar action on Friday, March 11, 2016 (Dkt No. 119 in the Cavnar action). Accordingly, the parties respectfully request that the Court stay this action pending preliminary and final approval of the proposed settlement or until September 30, 2016, whichever is earlier.
6. The parties will promptly advise the Court via joint status reports of developments in the Cavnar action, including the court's issuance of orders granting or denying preliminary or final approval of the proposed settlement.
7. If the settlement receives the court's final approval in the Cavnar matter, Plaintiffs will dismiss this action under Federal Rule of Civil Procedure 42. If the settlement is not approved, the parties will request a case management conference to set new deadlines in this matter.
STIPULATED TO AND DATED this 16th day of March, 2016.
Pursuant to Local Rule 5-1(i)(3), I hereby attest that concurrence in the filing of this document has been obtained from counsel for all parties, and that I will maintain records to support this concurrence by all counsel subject to this stipulation as required under the local rules.
Pursuant to stipulation, this matter shall be stayed and administratively closed pending preliminary and final approval of a proposed class-wide settlement in Cavnar v. BounceBack, Inc., No. No. 2:14-cv-00235 (E.D. Wash.). The stay shall last until the court in the Cavnar matter finally approves or rejects the proposed settlement and the period for appeal from a final approval order has lapsed, or until September 30, 2016, whichever is earlier. The parties shall promptly advise the Court of developments in the Cavnar matter via joint status report.
IT IS SO ORDERED.
This Settlement Agreement and Release (the "Settlement Agreement") is entered into by and between plaintiffs Woodena Cavnar, Rosaline Terrill, Linda Parks, David Scott, Angelina Freitas, Rebecca Lyon, and Maresa Kendrick (collectively, "Plaintiffs"), for themselves and the Settlement Class Members (as defined below), and defendants BounceBack, Inc., Stone Fence Holdings, Inc., Check Connection, Inc., and Gale Krieg ("Defendants"). Plaintiffs and Defendants are referred to collectively in this Settlement Agreement as the "Parties."
This Settlement Agreement is made with reference to and in contemplation of the following facts and circumstances:
1. On July 18, 2014, Plaintiffs Cavnar, Terrill, and Parks initiated a lawsuit, captioned Cavnar v. BounceBack, Inc. ("Washington Action"), against Defendants BounceBack, Inc., Stone Fence Holdings, Inc., and Gale Krieg before the United States District Court for the Eastern District of Washington. Plaintiff Scott joined as a party when Plaintiffs filed their First Amended Complaint in the Washington Action on May 29, 2015.
2. On August 3, 2015, Plaintiffs Freitas, Lyon, and Kendrick initiated a lawsuit captioned Freitas v. BounceBack, Inc. ("California Action"), against Defendants BounceBack, Inc., Stone Fence Holdings, Inc., Check Connection, Inc., and Gale Krieg before the United States District Court for the Northern District of California. Plaintiffs filed their First Amended Complaint in the California Action on October 23, 2015.
3. Plaintiffs allege in the Complaint in the Washington Action, on behalf of Plaintiffs and two proposed Washington classes, that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA") and the Washington Consumer Protection Act, RCW 19.86.010, et seq. ("CPA") by sending false and deceptive debt collection letters to Plaintiffs and the proposed class.
4. Plaintiffs allege in the Complaint in the California Action, on behalf of the California Plaintiffs and two proposed California classes that Defendants violated the FDCPA and the California Unfair Competition Law, Cal. Bus. & Prof. C., §§ 17200, et seq. ("UCL") by sending false and deceptive debt collection letters to Plaintiffs and the proposed class.
5. The parties have agreed to the filing of a Second Amended Complaint in the Eastern District of Washington that combines all parties and claims in both the Washington Action and the California Action (collectively, the "Action"). If the Court does not finally approve this Settlement for any reason, the Second Amended Complaint shall be of no further force or effect; the First Amended Complaints filed in both the Washington and California Actions will be the operative complaints.
6. Defendants deny all claims asserted in the Action. Defendants also deny all allegations of wrongdoing and liability in this Action. Defendants seek to settle the Action for the sole purpose of avoiding the burden and expense of continuing to litigate this Action.
7. The Parties and their counsel have conducted investigations of the facts and law underlying the claims asserted in this Action. In addition, the Parties and their counsel have conducted extensive discovery, which required Defendants to produce thousands of documents and a significant volume of data, and which included significant third-party discovery. The Plaintiffs also responded to written discovery. The Parties and their counsel have also conducted a thorough assessment of the strengths and weaknesses of their respective cases.
8. The Parties and their counsel have engaged in extensive and arm's-length negotiations concerning settlement of the claims asserted in the Action, including participating in private mediation with Teresa Wakeen, of Wakeen & Associates Mediation Services, an experienced mediator of consumer class action lawsuits.
9. As a result of the abovementioned efforts and ongoing direct negotiations between the Parties after the unsuccessful mediation, the Parties enter into this Settlement Agreement. Subject to this Court's approval as required by Rule 23 of the Federal Rules of Civil Procedure, this Settlement Agreement will fully and forever resolve, discharge, and release all rights and claims of Plaintiffs and the Settlement Class Members (as defined below). In exchange, Defendants agree to pay the sum of $530,000 to create a common fund for the benefit of Plaintiffs and the Settlement Class Members.
10. Plaintiffs and their counsel have concluded, based upon their investigation and thorough assessment, and taking into account Defendants' assets available to satisfy a judgment, defenses, the expense and time necessary to continue to litigate the Action through trial, the risks and costs associated with any further proceedings and potential appeals, the uncertainties of proving the claims asserted in the Action, and the substantial benefits to be received pursuant to this Settlement Agreement, that a settlement with Defendants and the terms of this Settlement Agreement are fair and reasonable, as well as in the best interest of Plaintiffs and the Settlement Class Members.
11. Plaintiffs, on behalf of themselves and the Settlement Class Members, and their counsel agree to the terms of this Settlement Agreement and to have judgment entered without trial or adjudication of any factual or legal issue. Plaintiffs and their counsel also agree that this Settlement Agreement, including any of its exhibits, does not constitute any evidence against, or any admission by Defendants.
In addition to the terms defined in other Sections of this Settlement Agreement, the following defined terms apply to this Settlement Agreement and its exhibits:
1. "Class Administrator" means the third-party selected by Class Counsel to prepare and send notice to the Settlement Class and to administer the settlement claims.
2. "Class Counsel" or "Plaintiffs' Counsel" means the law firms of Terrell Marshall Law Group, PLLC, Law Office of Paul Arons, Gupta Wessler PLLC, Ram, Olson, Cereghino & Kopczynski LLP, and Kirk D. Miller, P.S.
3. "Court" means the United States District Court for the Eastern District of Washington.
4. "Defendants' Fees" means any amount of money paid to the Defendants by a member of the Settlement Class that exceeds the amount of a check that was dishonored upon presentment.
5. "Effective Date" means the fifth day after the later of the following events:
6. "Final Approval Hearing" means the hearing held by the Court to determine whether to finally approve the Settlement and to determine the amount of fees and expenses awarded to Class Counsel and the amount of the service awards to Plaintiffs.
7. "Final Approval Order" means the order and judgment that the Court enters after finally approving the Settlement, substantially in the form attached hereto as Exhibit A.
8. "Letter" means any letter that the Released Parties sent, referring or relating to a returned check, and bearing the name, seal, or letterhead of any prosecuting attorney in Washington, or of a district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba counties in California.
9. "Notice Plan" means the proposed plan of sending notice to the Settlement Class of the proposed Settlement as set forth in Section VII.3 of this Settlement Agreement.
10. "Objection Deadline" means 60 calendar days from the Settlement Notice Date.
11. "Opt-Out Deadline" means 60 calendar days from the Settlement Notice Date.
12. "Postcard Notice" means the notice that will be provided pursuant to Section VII.3 of this Settlement Agreement, substantially in the same form as Exhibit B.
13. "Preliminary Approval Order" means the order that the Court enters upon preliminarily approving the Settlement, substantially in the form attached hereto as Exhibit C.
14. "Released Claims" means all claims to be released as set forth in Section XII.2 of this Settlement Agreement.
15. "Released Parties" means Defendants BounceBack, Inc., Stone Fence Holdings, Inc., Check Connection, Inc., and Gale Krieg.
16. "Releasing Parties" means the named Plaintiffs and members of the Settlement Class to whom the Postcard Notice is mailed.
17. "Settlement" means the settlement contemplated by this Settlement Agreement.
18. "Settlement Award" means a cash payment that may be available to eligible Settlement Class Members.
19. "Settlement Class" means all persons who: (a) were sent one or more Letters bearing the name, seal, or letterhead of any prosecuting attorney in Washington, from July 18, 2013 to November 30, 2015; or (b) were sent one or more Letters bearing the name, seal, or letterhead of any prosecuting attorney in Washington, from July 18, 2010 to November 30, 2015 and who paid any of Defendants' Fees; or (c) were sent one or more Letters bearing the name, seal, or letterhead of any district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba County, California from August 3, 2014 to November 30, 2015; or (d) were sent one or more Letters bearing the name, seal, or letterhead of any district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba County, California from August 3, 2011 to November 30, 2015 and who paid any of Defendants' Fees; and appear on the Settlement Class List.
20. "Settlement Class List" means the Excel spreadsheets provided by Defendants to Plaintiffs' counsel on February 10, 2016.
21. "Settlement Class Members" means all persons in the Settlement Class who do not request to be excluded from this Settlement.
22. "Settlement Costs" means (i) any award of attorneys' fees and costs to Class Counsel approved by the Court; (ii) any incentive or statutory damage awards to Plaintiffs approved by the Court; (iii) all costs of printing and providing notice to persons in the Settlement Class (including, but not limited to Postcard Notice, Website Notice, and any additional notice that might be ordered by the Court); (iv) all costs of administering the Settlement, including, but not limited to, the cost of printing and mailing Settlement Awards and the cost of maintaining a Settlement Website; and (v) the fees, expenses and all other costs of the Class Administrator.
23. "Settlement Fund" means the total cash sum of $530,000.00 to be paid by Defendants pursuant to Sections IV.4 and IV.5 of this Settlement Agreement. The Settlement Fund will be maintained in an escrow account managed by the Class Administrator. The Class Administrator will act in accordance with the terms of this Settlement Agreement and the orders of the Court.
24. "Settlement Notice Date" means the date the Settlement Notices are sent pursuant to the Notice Plan.
25. "Settlement Website" means the website that will be established and maintained by the Class Administrator as set forth in this Settlement Agreement.
26. "Website Notice" means the detailed notice of the Settlement that will be available on the Settlement Website subject to approval by the Court, substantially in the form attached hereto as Exhibit D.
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IN WITNESS HEREOF the undersigned, being duly authorized, have caused this Agreement to be executed on the dates shown below.
WHEREAS, on __________________, 2016, this Court entered its Order Granting Preliminary Approval of Class Action Settlement (ECF No. ____) (the "Preliminary Approval Order"); and
WHEREAS, individual notice complying with Fed. R. Civ. P. 23 was sent to the last-known address of each reasonably identifiable member of the Settlement Class, and where follow-up procedures outlined in the Settlement Agreement and approved by the Preliminary Approval Order have been completed; and
WHEREAS, a fairness hearing on final approval of the settlement was held before the Court on ______________________, 2016; and
WHEREAS, the Court being advised, finds that good cause exists for the entry of the below Order; now, therefore
IT IS HEREBY FOUND, ORDERED, ADJUDGED AND DECREED THAT:
1. Unless otherwise provided herein, all capitalized terms in this Order shall have the same meaning as set forth in the Settlement Agreement attached as Exhibit 1 to the Declaration of Beth E. Terrell in Support of Preliminary Approval (ECF No. ____) and/or Plaintiffs' Motion for Preliminary Approval (ECF No. ____).
2. The Court finds that notice to the Settlement Class has been completed in conformity with the Preliminary Approval Order. The Court finds that this notice was the best notice practicable under the circumstances, that it provided due and adequate notice of the proceedings and of the matters set forth therein, and that it fully satisfied all applicable requirements of law and due process.
3. The Court finds that notice of the Settlement Agreement has been provided to the United States Attorney General, the Washington State Attorney General, and the California Attorney General in accordance with 28 U.S.C. § 1715.
4. The Court finds it has personal and subject matter jurisdiction over all claims asserted in this Litigation with respect to all members of the Settlement Class.
1. Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, the Court certifies for settlement purposes only the following Settlement Class: All persons who: (a) were sent one or more Letters bearing the name, seal, or letterhead of any prosecuting attorney in Washington, from July 18, 2013 to November 30, 2015; or (b) were sent one or more Letters bearing the name, seal, or letterhead of any prosecuting attorney in Washington, from July 18, 2010 to November 30, 2015 and who paid any of Defendants' Fees; or (c) were sent one or more Letters bearing the name, seal, or letterhead of any district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba County, California from August 3, 2014 to November 30, 2015; or (d) were sent one or more Letters bearing the name, seal, or letterhead of any district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba County, California from August 3, 2011 to November 30, 2015 and who paid any of Defendants' Fees; and appear on the Settlement Class List.
"Settlement Class Members" include members of the Settlement Class that do not opt-out from the action. The Settlement Class also does not include any persons who validly request exclusion from the Class.
5. In connection with this conditional certification, the Court makes the following findings:
(a) The Settlement Class is so numerous that joinder of all members is impracticable;
(b) There are questions of law or fact common to the Settlement Class for purposes of determining whether this settlement should be approved;
(c) Plaintiffs' claims are typical of the claims being resolved through the proposed settlement;
(d) Plaintiffs are capable of fairly and adequately protecting the interests of the Settlement Class members in connection with the proposed settlement;
(e) For purposes of determining whether the settlement is fair, reasonable and adequate, common questions of law and fact predominate over questions affecting only individual Settlement Class members. Accordingly, the Settlement Class is sufficiently cohesive to warrant settlement by representation; and
(f) For purposes of settlement, certification of the Settlement Class is superior to other available methods for the fair and efficient settlement of the claims of the Settlement Class members.
6. The Court has appointed Wodena Cavnar, Rosaline Terrill, Linda Parks, David Scott, Angelina Freitas, Rebecca Lyon and Maresa Kendrick as representatives of the Settlement Class.
7. The Court has appointed Terrell Marshall Law Group PLLC, Gupta Wessler PLLC, Law Office Paul Arons, Kirk D. Miller, P.S., and Ram, Olson, Cereghino & Kopczynski as counsel for the Settlement Class.
8. To the extent any timely-filed objections to the Settlement have been lodged, the Court has considered those objections and found they do not counsel against approval of the Settlement, and the objections are hereby overruled.
9. The terms set forth in the Settlement are approved as being fair, adequate, and reasonable in light of the degree of recovery obtained in relation to the risks faced by the Settlement Class in litigating the claims. The Settlement Class is properly certified as part of this settlement. The relief provided to the Settlement Class under the Settlement Agreement is appropriate as to the individual members of the Settlement Class and as a whole.
10. The Court approves the payment of $___________ in fees and costs to Class Counsel as fair and reasonable based on the lodestar and percentage-of-the-fund methods, which courts use to determine the reasonableness of fees. The Court also approves as reasonable Class Counsel's total lodestar amount of $___________. The Court reaches this conclusion after analyzing (1) the number of hours Class Counsel reasonably expended on the litigation multiplied by counsel's reasonable hourly rates; (2) the substantial financial recovery for Settlement Class members (3) the diligent and efficient effort utilized by Class Counsel in litigating Plaintiffs' claims; (4) Class Counsel's substantial experience in complex litigation and skill utilized to achieve the Settlement; and (5) the hurdles to certifying the Settlement Class and proving liability and damages at trial. In the event that there are unclaimed settlement funds after all Settlement Award checks have been cashed or voided, the balance shall be paid to Class Counsel, provided that doing so will not result in a total payment to Class Counsel exceeding $___________.
11. The Court approves the incentive and statutory damage payments of $2,000 to Plaintiffs Wodena Cavnar, Rosaline Terrill, Linda Parks, David Scott, Angelina Freitas, Rebecca Lyon and Maresa Kendrick. This award is reasonable and does not undermine Plaintiffs' adequacy as Class Representatives. Rather, this award reasonably compensates Plaintiffs Wodena Cavnar, Rosaline Terrill, Linda Parks, David Scott, Angelina Freitas, Rebecca Lyon and Maresa Kendrick for his time and effort in stepping forward to serve as class representative, assisting in the investigation, participating in and keeping abreast of the litigation, and reviewing and approving the proposed settlement terms after consulting with Class Counsel.
12. The Settlement is binding on all Settlement Class members.
13. Each member of the Settlement Class shall be entitled to receive a pro rata share of the Net Settlement Proceeds as set forth in the Settlement Agreement. Any Settlement Class Member who fails to cash or deposit a disbursement check issued to that member after a period of 120 calendar days has elapsed from the date on which the disbursement check was issued will not receive a share of relevant Net Settlement Proceeds but will be bound nevertheless by the terms of the relevant Settlement Agreement.
14. All Settlement Class Members are bound by the terms of the Settlement Agreement. As of that Settlement Agreement's Effective Date, all Settlement Class Members shall conclusively be deemed to have irrevocably released, relinquished, and forever discharged all claims against all released entities and individuals as set forth in the Settlement Agreement. The Settlement Agreement provides: "Upon the Effective Date of this Agreement and without any further action by the Court or by any Party to this Agreement, Representative Plaintiff and the members of the Class and all of their spouses, former spouses, administrators, executors, personal representatives, heirs, agents, attorneys, assigns, predecessors and successors, for good and sufficient consideration, the receipt and adequacy of which is acknowledged, shall be deemed to, and shall in fact, have fully remised, released and forever discharged any and all Released Claims, which they, or any of them, had or has or may in the future have or claim to have against the Released Persons." The Settlement Agreement further provides that Release Claims "shall mean and include a full release by Representative Plaintiff and each Class Member as to all Release Persons (as defined further in ¶ 1) of any and all claims against all Defendants that exist as of November 30, 2015, and that arise out of or relate in any way to Letters, including, but not be limited to, claims based on a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., violation of Washington's Consumer Protection Act, RCW 19.86, et seq., or violation of the California Unfair Competition Law, Cal. Bus. & Prof. C., §§ 17200, et seq.
15. As of the Effective Date, all Settlement Class Members agree "not to institute, be represented in, participate in, submit, file, or permit to be filed on their behalf, any lawsuit, arbitration, charge, claim, complaint, or other proceeding in which a Released Claim is asserted. In the event that Representative Plaintiff or any Class Member institutes or is a party to any such action, the claim shall be immediately dismissed with prejudice upon presentation of [the] Settlement Agreement."
16. Neither this Order nor any aspect of the Settlement Agreement is to be construed or deemed an admission of liability, culpability, negligence, or wrongdoing on the part of Defendants, who specifically deny liability. Each of the Parties to the settlement entered into the Settlement Agreement with the intention to avoid further disputes and litigation with the attendant inconvenience and expenses.
17. Pursuant to the Settlement Agreement, Plaintiff shall file a Stipulation of Dismissal with Prejudice as to Defendants within thirty (30) days after the Effective Date of the Settlement Agreement. The Court will then dismiss this action with prejudice as to all Settlement Class members except those who have timely and properly excluded themselves from the Settlement Class. Individuals who have timely and properly excluded themselves from the Class and are thus not bound by this Judgment are listed on Exhibit A, which is attached to this order.
18. The entry of this order and any subsequent dismissal is without prejudice to the rights of the Parties to enforce the terms of the Settlement Agreement and the rights of Class Counsel to seek the payment of fees and costs as provided for in the Settlement Agreement. Without affecting the finality of this Order, or the judgment to be entered pursuant hereto, in any way, the Court retains jurisdiction over the claims against Defendants for purposes of resolving any disputes that may arise under the Settlement Agreement.
I, Beth E. Terrell, hereby certify that on March 10, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
1. This Court has jurisdiction over the subject matter of this Action and personal jurisdiction over the Parties and the Settlement Class.
2. The Court finds that (a) the Agreement resulted from extensive arm's-length negotiations, with participation of an experienced mediator, and (b) the Agreement is sufficient to warrant notice thereof to members of the Settlement Class and the Final Approval Hearing described below.
3. Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, and for the purposes of settlement only, the Settlement Class is preliminarily certified as:
4. "Settlement Class Members" include members of the Settlement Class that do not opt-out from the action. The Settlement Class also does not include any persons who validly request exclusion from the Class.
5. For purposes of settlement only, the Court hereby appoints Plaintiffs Wodena Cavnar, Rosaline Terrill, Linda Parks, David Scott, Angelina Freitas, Rebecca Lyon and Maresa Kendrick as "Class Representatives" pursuant to Rule 23 of the Federal Rules of Civil Procedure, and finds that, for settlement purposes only, these Class Representatives have and will fairly and adequately protect the interests of the Settlement Class.
6. For purposes of settlement only, the Court appoints the attorneys at Terrell Marshall Law Group PLLC, Gupta Wessler PLLC, Law Office Paul Arons, Kirk D. Miller, P.S., and Ram, Olson, Cereghino & Kopczynski as Class Counsel and finds that for settlement purposes, Class Counsel have and will fairly and adequately protect the interests of the Settlement Class.
7. The Court preliminarily finds that the Agreement is fundamentally fair, adequate, and reasonable, and for the purposes of settlement only, that the Settlement Class satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure as follows:
a. The number of members in the Settlement Class appears to be so numerous that joinder of all members is impracticable;
b. There appear to be common questions of law and fact;
c. The claims of the Class Representatives appear to be typical of the claims of the Settlement Class;
d. The Class Representatives and Class Counsel appear to be able to fairly and adequately represent and protect the interests of the Settlement Class;
e. The questions of law and fact common to the members of the Settlement Class appear to predominate over individual questions of law and fact; and
f. A class action settlement appears to be superior to other methods of adjudication.
8. The Court appoints Kurtzman Carson Consultants as the Class Administrator, who shall fulfill the functions, duties, and responsibilities of the Class Administrator as set forth in the Agreement and this Order.
9. The Court approves the proposed forms of notice and notice plan for giving direct notice to the Settlement Class by U.S. Mail as set forth in the Agreement and its attached exhibits ("Notice Plan"). The Notice Plan, in form, method, and content, fully complies with the requirements of Rule 23 and due process, constitutes the best notice practicable under the circumstances, and is due and sufficient notice to all persons entitled thereto. The Court finds that the Notice Plan is reasonably calculated to, under all circumstances, reasonably apprise the persons in the Settlement Class of the pendency of this action, the terms of the Agreement, the right to object to the settlement and to exclude themselves from the Settlement Class, and the process for submitting a claim for monetary relief.
10. Pursuant to the Agreement, the Class Administrator shall provide individual notice via U.S. Mail to the most recent mailing address as reflected in Defendants' reasonably available computerized account records (which the Class Administrator shall update through the national change of address system) no later than _____________, which is thirty (30) days following entry of this Order.
11. Members of the Settlement Class may exclude themselves from the Settlement Class by advising the Class Administrator either through an online opt-out form or by mailing a written request no later than ____________ ("Opt-Out Deadline"), which is sixty (60) days after the date notice is sent to the Settlement Class. All written requests must be signed, and if mailed, must be postmarked no later than the Opt-Out Deadline.
12. Any Settlement Class Member who desires to object to the fairness of this settlement must file a written objection with the Court by ____________ ("Objection Deadline"), which is sixty (60) days from the date notice is mailed to the Settlement Class. The objection must provide the objector's name, address, telephone number at which the calls were received, and the reason(s) for the objection.
13. Anyone who properly objects, as described herein, may appear at the Final Approval Hearing, including through an attorney hired at the objector's expense. Such objectors or their attorneys intending to appear at the Final Approval Hearing must file a notice of appearance with this Court no later than ten (10) days prior to the Final Approval Hearing. Any member of the Settlement Class who fails to comply with the provisions herein shall waive and forfeit any and all rights to appear and/or object separately, and shall be bound by the terms of this settlement and the orders and judgments of this Court. Class Counsel shall file responses to any valid objections no later than fourteen (14) days prior to the Final Approval Hearing. Defendants' counsel also may file responses, but no later than fourteen (14) days prior to the Final Approval Hearing.
14. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure a hearing will be held before this Court to finally determine whether the prerequisites for class certification and treatment under Rule 23(a) and (b) of the Federal Rules of Civil Procedure are met; to determine whether the settlement is fair, reasonable, and adequate, and should be approved by this Court; to determine whether the Settlement Order and Final Judgment under this settlement should be entered; to consider the application for attorneys' fees and expenses of Class Counsel; to consider the application for service awards to the class representatives; to consider the distribution of the Settlement Fund pursuant to the Agreement; and to rule on any other matters that the Court may deem appropriate. At the Final Approval Hearing, the Court may enter the Settlement Order and Final Judgment in accordance with the Agreement that will adjudicate the rights of the Settlement Class Members.
15. The Final Approval Hearing is scheduled for _______________.
16. All memoranda and other submissions in support of the Settlement Order and Final Judgment and this settlement shall be filed no later than fourteen (14) days prior to the Final Approval Hearing, including proof of compliance with the notice provisions of the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1715.
17. All notice and Settlement Administration expenses shall be paid from the Settlement Fund pursuant to the Agreement.
18. On or before thirty (30) days after the Notice Date, Class Counsel shall file and serve an application for an award of attorneys' fees and out-of-pocket costs, and an application for service awards to Plaintiffs. The application shall be posted on the settlement website within twenty-four hours after the day it is filed.
19. On or before fourteen (14) days prior to the Final Approval Hearing, Class Counsel shall file and serve a motion for final approval and responses to any objections.
20. All members of the Settlement Class will be bound by all orders pertaining to the settlement unless such persons request exclusion from the Settlement Class. Members of the Settlement Class who do not timely and validly request exclusion shall be so bound, even if they have previously or subsequently initiated individual litigation or other proceedings against the Released Parties relating to the Release Claims.
21. Settlement Class Members do not need to appear at the Final Approval Hearing or take any other action to indicate their approval and partake in this settlement.
22. This Order and the settlement are not admissions or concessions by Defendants of any liability or wrongdoing. This Order is not a determination of liability or wrongdoing. This Order also does not constitute any opinion or position of this Court as to the merits of the claims and defenses related to this Action.
23. This Action is stayed until further ordered by this Court, except such actions and proceedings that may be necessary to implement this settlement and Order.
24. Pending final determination of whether the settlement should be approved, Plaintiffs, all Settlement Class Members and any person or entity allegedly acting on behalf of Settlement Class Members, either directly, representatively or in any other capacity, are preliminarily enjoined from commencing or prosecuting against the Released Parties any action or proceeding in any court or tribunal asserting any of the Released Claims, provided, however, that this injunction shall not apply to individual claims of any Settlement Class Members who timely exclude themselves in a manner that complies with this Order. This injunction is necessary to protect and effectuate the settlement, this Order, and the Court's flexibility and authority to effectuate this settlement and to enter judgment when appropriate, and is ordered in aid of the Court's jurisdiction and to protect its judgments pursuant to 28 U.S.C. § 1651(a).
25. If Final Approval does not occur, the parties shall be returned to the status quo ex ante, for all litigation purposes, as if no settlement had been negotiated or entered into and thus this Order and all other findings or stipulations regarding the settlement, including but not limited to, certification of the Settlement Class, and the Plaintiffs' Second Amended Complaint in this action, shall be automatically void, vacated, and treated as if never filed.
26. Counsel for the parties are hereby authorized to utilize all reasonable procedures in connection with the administration of the settlement which are not materially inconsistent with either this Order or the terms of the Settlement Agreement.
27. This Court retains jurisdiction to consider all further matters arising out of or connected with the settlement. The Court reserves the right to adjourn or continue the date of the Final Approval Hearing without further notice to Settlement Class Members, and retains jurisdiction to consider all further applications arising out of or connected with the settlement. The Court may approve or modify the settlement without further notice to Settlement Class Members.
28. The following timeline will govern proceedings through the Final Approval Hearing:
IT IS HEREBY ORDERED.
• Wodena Cavnar, Rosaline Terrill, Linda Parks, David Scott, Angelina Freitas, Rebecca Lyon, and Maresa Kendrick ("Plaintiffs"), have sued Bounceback, Inc., Stone Fence Holdings, Inc., Check Connection, Inc., and Gale Krieg ("Defendants"), alleging that to collect dishonored checks they mailed collection demands on county prosecutor or district attorney letterhead. In the letters Defendants demanded the check amount, plus fees for a "Check Enforcement Program" that check writers were told they had to pay to avoid criminal prosecution.
• The Court presiding over the Cavnar case has issued a preliminary order approving the settlement in both the Cavnar (WA) and Freitas (CA) cases and will decide whether the proposed settlement should be approved.
• Defendants have agreed to pay $530,000 into a fund from which eligible class members will receive cash awards, estimated to be at least fourteen percent (14%) of the program fees class members paid to Defendants. Class members who did not pay any fees will receive an award of $5.
• Court-appointed lawyers for the class ("Class Counsel") will ask the Court for up to $243,186, of the settlement as their reasonable attorney's fees and to reimburse them for the out-of-pocket expenses they paid to investigate the facts, litigate the case, and negotiate the settlement. Class counsel will also ask for a supplemental award of attorneys' fees and costs, to be paid from any funds that remain undistributed after class members have been paid.
• The class administrator who mailed the postcard notice, set up the settlement website, and will mail settlement checks will be paid up to $28,000 of the settlement funds for its work.
• As part of the proposed settlement, Defendants do not admit to any wrongdoing and continue to deny the allegations against them.
• The two sides disagree on whether Plaintiffs and the class could have won at trial.
• Your legal rights are affected whether you act, or don't act. Please read this notice carefully.
The purpose of this Notice is to let you know that a proposed settlement has been reached in the class action lawsuits entitled Cavnar, et al. v. Bounceback, Inc., et al., No. 2:14-cv-00235-RMP and Freitas, et al. v Bounceback, Inc. et al, No. 3:15-cv-03560-RS. Judge Rosanna Malouf Peterson of the United States District Court for the Eastern District of Washington preliminarily approved the proposed settlement in both lawsuits. You have legal rights and options that you may act on before the Court decides whether to grant final approval of the proposed settlement. Because your rights will be affected by this settlement, it is extremely important that you read this Notice carefully.
Defendants' records show that you may have received one or more collection demands on county prosecutor or district attorney letterhead stating that to avoid prosecution for writing a dishonored check, you had to pay for a "Check Enforcement Program." This notice explains that the Court has preliminarily approved the settlement of the claims in this lawsuit. You have legal rights and options that you may exercise before the fairness hearing (also known as a "final approval hearing"). The fairness hearing is to decide whether the settlement agreement is fair, reasonable, adequate, and in the best interest of the class.
In a class action, one or more people, called class representatives, sue on behalf of people who have similar claims. All of these people are a class, or class members. One court resolves the issues for all class members, except those who exclude themselves from the class.
Generally the claims in this case are that Defendants violated the law by collecting debts in the name of the county prosecutor, demanding fees for a Check Enforcement Program that were not permitted by law, and by falsely threatening to prosecute check writers who did not pay those fees.
More specifically, the class representatives claim that, on or after July 18, 2010 in Washington on or after August 3, 2011 in California (Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba counties), Defendants violated state and federal laws by using false, deceptive or misleading communications to collect debts. The class representatives also claim that Defendants violated the law by soliciting claims for collection while not licensed as a collection agency; collecting or attempting to collect debts owed or due or asserted to be owed or due another person while not licensed as a collection agency; using a fictitious name or any name other than its own which would indicate to the debtor that a third person is collecting or attempting to collect such alleged debts; making false threats and collecting fees not permitted by law; collecting substantial compensation and fees from Plaintiffs and other Class Members while operating as a collection agency without a license; and aiding and abetting one another in said unlawful conduct. Plaintiffs allege that by this conduct Defendants violated the Fair Debt Collection Practices Act ("FDCPA"), the Washington Consumer Protection Act ("CPA"), and the California Unfair Competition Law ("UCL"). Defendants deny that they did anything wrong.
The Court did not decide in favor of Plaintiffs or Defendants. Instead, both sides agreed to a settlement. This way, they avoid the cost of a trial, and the people affected will receive compensation. The class representatives and their attorneys think the settlement is best for the Settlement Class.
You are not in the Settlement Class unless Defendants listed you as one of the people to whom it sent the letters described above. The Settlement Class also does not include any persons who validly request exclusion from the Settlement Class, as described under Question 11. A person meeting the criteria in (1) through (4), above, who does not exclude him or herself is a "Settlement Class Member."
If you have questions about whether you are part of the Settlement Class, you may call 1-855-349-7023 or visit
Members of the Settlement Class will receive a Settlement Award reflecting a percentage of the program fees the Settlement Class Member paid to Defendants, provided however that each Settlement Class Member will receive a minimum Settlement Award of $5. Class Counsel estimates that these Settlement Awards will be at least fourteen percent (14%) of the program fees paid by each CPA/UCL Settlement Class Member. Members of the Settlement Class who did not pay any fees will receive a statutory damages award of $5.
Your share of the settlement will depend on the number of Notices that are successfully mailed to Settlement Class Members. Class Counsel estimates that each Settlement Class Member who paid fees will receive at least fourteen percent (14%) of the fees he or she paid. Each payment will be at least $5. Settlement Class Members who did not pay any fees will receive $5.
If you received a postcard Notice you will automatically receive a payment. You do not need to submit a claim form or contact anyone. If you did not receive a postcard Notice but believe you are in the Settlement Class, you must call the toll-free number listed below.
Within forty (40) calendar days from the entry of the Court's Final Approval Order, the Class Administrator will mail checks to Settlement Class Members. The checks will be valid for 120 days from the date of issuance.
Unless you exclude yourself, you will be part of the Settlement Class and a Settlement Class Member. That means you may not sue, continue to sue, or be part of any other lawsuit against the Defendants. It also means that all of the Court's orders will apply to you and legally bind you.
The Settlement Agreement (available at www. XXXXXX.com) describes the claims you are releasing (the "Released Claims") and against whom you are releasing claims (Defendants) in detail, so read it carefully. To summarize, the release includes all claims that arise out of or relate in any way to any letter that Defendants sent to you, referring or relating to a returned check, and bearing the name, seal, or letterhead of any prosecuting attorney in Washington, or of a district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba counties in California. Released Claims include, but may not be limited to, claims based on a violation of the Fair Debt Collection Practices Act, Washington Consumer Protection Act, California Unfair Competition Law, and any other statutory or common law claim.
If you don't want a payment from this settlement, but you want to keep the right to sue or continue to sue the Defendants, then you must take steps to remove yourself from the Settlement Class. This is called excluding yourself — or is sometimes referred to as "opting out" of the Settlement Class.
To exclude yourself from the settlement you may either opt out through the Exclusion Request Form at
You cannot exclude yourself on the phone, by fax, or email. If you ask to be excluded, you will not get any payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) the Defendants in the future.
No. Unless you exclude yourself, you give up any right to sue the Defendants for the claims that this settlement resolves. If you already have a lawsuit that may relate to the claims being released as part of this class settlement, you should speak to your lawyer in that case immediately. You must exclude yourself from this Settlement Class to continue your own lawsuit. The exclusion deadline is ___________.
No. You will not receive a payment if you exclude yourself.
The Court has appointed Terrell Marshall Law Group PLLC; Gupta Wessler PLLC; the Law Office of Paul Arons; Kirk D. Miller, P.S.; and Ram, Olson, Cereghino & Kopczynski to represent you and other Settlement Class Members. These lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
Class Counsel will ask the Court to approve payment of up to $243,186 to them for attorneys' fees and their out-of-pocket expenses. Class Counsel will also ask that the Court award them any unclaimed settlement funds remaining after all settlement checks have been cashed or have expired. These payments would pay Class Counsel for investigating the facts, litigating the case, negotiating the settlement and for administration costs. Class Counsel will also request awards of $2,000 each for the named Plaintiffs to compensate them for their time and effort and for statutory damages under the FDCPA. Class Counsel's complete request for fees, costs, and incentive awards to the named Plaintiffs will be posted on the Settlement Website www.XXXXXXX.com on ****, 2016. The Court may award less than these amounts.
If you are a Settlement Class Member and you do not exclude yourself from the Settlement Class, you can object to the settlement if you don't like any part of it. Your written objection must provide your name, address, telephone number, and the reason(s) for your objection. You must file the objection with the Court no later than _______, by mailing it to:
Objecting simply means telling the Court that you don't like something about the settlement. You can object only if you stay in the Settlement Class. Excluding yourself from the Settlement Class is telling the Court that you don't want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.
The Court will hold the final fairness hearing at 1:30 p.m. on July 20, 2016, before the Honorable Rosanna Malouf Peterson at the United States District Court for the Eastern District of Washington, 920 West Riverside Ave., Room 840, Spokane, Washington 99201. The purpose of the hearing is for the Court to determine whether the settlement is fair, reasonable, adequate, and in the best interest of the class. At the hearing, the Court will hear any objections and arguments concerning the fairness of the proposed settlement, including those related to the amount requested by Class Counsel for attorneys' fees and expenses and the incentive and damage awards to the Class Representatives. After the hearing, the Court will decide whether to approve the settlement. We do not know how long these decisions will take.
Note: The date and time of the fairness hearing are subject to change by Court Order. Any changes will be posted at the Settlement website, www. XXXXXX.com.
No. Class Counsel will answer any questions the Court may have. You are welcome to come to the hearing at your own expense. If you send an objection you don't have to come to the Court to talk about it. As long as your written objection was filed or mailed on time, and meets the other criteria described in the Settlement Agreement, the Court will consider it. You may also pay a lawyer to attend, but you don't have to.
If you do not exclude yourself from the Settlement Class, you may ask the Court for permission to speak at the hearing concerning any part of the proposed Settlement Agreement. If you filed an objection (see Question 16 above) and intend to appear at the hearing, you must state your intention to do so in your objection. To speak, you must send a letter saying that it is your "Notice of Intention to Appear" in "Cavnar, et al. v. Bounceback, Inc., et al., Case No. 2:14-cv-00235-RMP." Be sure to include your name, address, telephone number, that you are a Class Member, and your signature. Your Notice of Intention to Appear must be received at the address in Question 16, no later than _________. You cannot speak at the hearing if you exclude yourself.
If you do nothing, you will be a member of the Settlement Class and you will be sent a payment.
This Notice summarizes the proposed settlement. More details are in the Settlement Agreement. You may review the Settlement Agreement on the Settlement Website at www.XXXXXX.com. You can also get a copy of the Settlement Agreement by writing to Blythe Chandler, Terrell Marshall Law Group PLLC, 936 N. 34
You can call 1-855-349-7023 toll free; write to Bounceback Settlement Administrator, P.O. Box _____, __________, __ _____-____; or visit the website at
