JOHN W. DeGRAVELLES, District Judge.
Before the Court is the motion (Doc. 21) by Plaintiff Lindsay Hays ("Plaintiff"), individually and as a representative of the class of persons defined below in Paragraph 3(a) of the proposed class settlement agreement (Doc. 21-3 at 1-2) ("Class"), and Eaton Group Attorneys, LLC, ("Defendant") (collectively, the "Parties") to (i) enter an order which preliminarily approves the Class Settlement Agreement ("Agreement") (Doc. 21-3), attached as Exhibit 1 to the Declaration of Samuel J. Ford (Doc. 21-2) (the "Declaration"); (ii) set dates for Class members to opt out, object, or return a claim form; (iii) schedule a hearing for final approval of the Agreement; (iv) approve the mailing of the notice to the Class in the form of Exhibit 2 to the Declaration (the "Notice") (Doc. 21-4.); and (v) find that the mailing of such Notice satisfies both statutory requirements and due process. For the reasons which follow, the motion is granted.
Plaintiff alleges in her pleadings that Defendant committed Fair Debt Collection Practices Act ("FDCPA") violations by: (1) making false, deceptive, and misleading representations in connection to the collection of a debt and (2) using unfair and unconscionable means to collect or attempt to collect a debt.
Plaintiff seeks to certify the case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure and proposes to act as representative of a state-wide class consisting of Louisiana consumers who, within one year prior to the filing of this action, "received a collection letter from Defendant offering to discuss a voluntary repayment plan in connection to a signed consent judgment and/or the disclosure of personal, financial, employment, and/or income information." (Doc. 21-3 at 1-2.)
Specifically, Plaintiff alleges that on or about May 31, 2016, Defendant mailed a collection letter (the "Letter") to Plaintiff. Defendant attached to the Letter a drafted consent judgment for a lawsuit captioned Midland Funding LLC versus Lindsay Hays, No. 468028-17, Ascension Parish Court, Parish of Ascension, State of Louisiana (the "Suit"). The consent judgment attached to the Letter was signed by Defendant and only needed Plaintiff's signature to be filed as a judgment against Plaintiff for the full amount of the alleged debt and all costs of the Suit. In signing the consent judgment, Plaintiff would also waive citation, service, petition, and all delays.
The Letter also contained a requested information section entitled "PLEASE COMPLETE & RETURN," requesting the following information from Plaintiff:
After the requested information section, the Letter contained signature lines for Plaintiff and a spouse under the statement "AUTHORITY GRANTED THIRD PARTIES TO VERIFY/CORRECT."
The only portion of the Letter actually addressing Plaintiff was an introductory paragraph at the top of the Letter, stating "[i]f you would like to explore a voluntary repayment plan then please provide the requested information. The debt will need to be acknowledged through the attached consent judgment. Please return these forms as soon as possible. This is a communication from a debt collector. This is an attempt to collect a debt. Any information obtained will be used for that purpose."
Plaintiff alleges Defendant sent letters with identical or substantially identical language to hundreds of Louisiana consumers. Plaintiff alleges the Letter is false, deceptive, and misleading because an unsuspecting debtor, seeking only to explore a voluntary repayment plan, could be fooled into executing the consent judgment or providing personal income information without knowledge of the consequences.
The Parties represent that they began to engage in settlement negotiations after Plaintiff filed this action. The parties represent that these discussions were contentious, and each term of the settlement was hard fought. The Defendants and Class counsel ultimately reached an agreement on all terms, which they memorialized in the Class Settlement Agreement (Doc. 21-3). Defendant denies violating the FDCPA and denies all liability to Plaintiff and the Settlement Class. However, Defendant now desires to settle the claims solely to avoid the expense, burden, and uncertainty of further litigation, and to put to rest all claims that have been or could have been asserted by Plaintiff and the Settlement Class against Defendant in this Lawsuit.
Plaintiff's counsel represent that they have thoroughly investigated the underlying claims and gathered significant factual information through interrogatories, requests for the production of documents, requests for admission, and a deposition of Defendant's Certified Public Accountant.
Counsel for the Parties represent that they have analyzed the legal and factual issues presented in this action, the risks and expense involved in pursuing the Lawsuit to conclusion, the likelihood of recovering damages in excess of those obtained through this settlement, the protracted nature of the litigation, and the likelihood, costs, and possible outcomes of one or more procedural and substantive appeals. Based upon counsels' review and analysis, the Parties have entered into the Agreement to settle and compromise this Lawsuit on the terms and conditions embodied in the Agreement and agree as follows:
Rule 23 of the Federal Rules of Civil Procedure governs the conditional or preliminary certification sought by the Parties. The recent amendment to Rule 23(e) makes clear that its procedural safeguards apply to a "class proposed to be certified for purposes of settlement" and requires the Court to conclude that it will likely be able, after final hearing, to certify the class. Fed. R. Civ. P. 23(e). As the 2018 Advisory Committee Note to Rule 23(e)(2) explains:
The 2018 Advisory Committee Note to Rule 23(e)(1) reiterates the same message in a different way, stating that "[t]he court should not direct notice to the class until the parties' submissions show it is likely that the court will be able to approve the proposal after notice to the class and a final approval hearing." Fed. R. Civ. P. 23(e)(1) advisory committee's note to 2018 amendment.
The 2018 Advisory Committee Note to Rule 23(e)(2) also makes clear that, "in addition to evaluating the proposal itself, the court must determine whether it can certify the class under the standards of Rule 23(a) and (b) for purposes of judgment based on the proposal." Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018 amendment.
Under Rule 23(a), the party seeking certification bears the burden of establishing four threshold requirements: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative party are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Unger v. Amedisys, 401 F.3d 316, 320 (5th Cir. 2005) (citing Berger v. Compaq Computer Corp., 257 F.3d 475, 479-80 (5th Cir 2001)). The certification requirements of Rule 23 generally apply when certification is for settlement purposes. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997); Fed. R. Civ. P. 23(e)(2) advisory committee note to 2018 amendment.
Solely for the purposes of this motion and to effectuate the proposed settlement, Defendant does not dispute that the Settlement Class should be certified.
Based upon information received from Defendant, Class members have been specifically identified and the size of the Settlement Class exceeds one thousand, which is sufficient to satisfy the numerosity requirement of Rule 23(a)(1). See Mullen v. Treasure Chest Casino LLC, 186 F.3d 620, 624 (5th Cir. 1999) (finding that class of 100 to 150 satisfies numerosity requirement and noting that any class consisting of more than forty members "should raise a presumption that joinder is impracticable").
The Court finds that there are common questions of law or fact affecting the Class, and these questions include, but are not limited to: (a) whether Defendant's form collection letter, sent to all Class members, violated the FDCPA; (b) whether Plaintiff and the other Class members are entitled to recover damages and, (c) if so, in what amount.
"[M]any courts have found typicality if the claims or defenses of the representatives and the members of the class stem from a single event or a unitary course of conduct, or if they are based on the same legal or remedial theory." 7A Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, Section 1764 (2017). As long as the claims of the named plaintiffs are consistent with those of the class, the claims need not be identical. In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mex., 910 F.Supp.2d 891, 911 (E.D. La. 2012).
For FDCPA cases concerning form letters, typicality is met where the named plaintiff receives a letter containing the same alleged defects as those sent to the class. See Reyes v. Julia Place Condominiums Homeowners Ass'n, Inc., No. 12-2043, 2014 WL 7330602, at *9 (E.D. La. Dec. 18, 2014) (finding typicality met where named plaintiff received a letter containing language which was the crux of the class-wide claims); see also Cope v. Duggins, No. 98-3599, 2000 WL 381928, at *3 (E.D. La. Apr. 13, 2000) (finding typicality met where allegations state that every class member received a letter from defendants that violated FDCPA).
The Court finds that the typicality requirement is satisfied here because Plaintiff and the Class all received collection letters from Defendant with the same alleged defects. Plaintiff's factual claims, legal theories, and remedies are identical to those of the class.
Plaintiff asserts that she will fairly and adequately represent the interests of the Class and that she has no interests adverse to other members of the Settlement Class. As the Supreme Court stated in Amchem Products, she is "part of the class and possess[es] the same interest and suffer[ed] the same injury as the class members." Amchem Prods., 521 U.S. at 594-95.
Further, as discussed earlier, Plaintiff has hired counsel who have substantial experience in the handling of both consumer protection litigation and class actions. Plaintiff's counsel successfully defended a motion for summary judgment regarding the exact claim at issue in this litigation. Brandon v. Eaton Grp. Attorneys, LLC, No. 16-13747, 2017 WL 345864 (E.D. La. Jan. 24, 2017). Further, Plaintiff's counsel have been enrolled in several other class actions in the past two years. (Doc. 21-2, ¶ 8; see also Doc. 28-1). Lastly, Plaintiff's lead counsel, Samuel Ford, participated in the defense of many consumer class action cases as an associate attorney with Sessions, Fishman, Nathan & Israel. (Doc. 21-2, ¶ 9; see also Doc. 28-1). The Court has also reviewed the affidavits of Galen M. Hair (Doc. 28-4) and David P. Vicknair (Doc. 28-5) and concludes that they, too, are experienced in the field of consumer litigation. Thus, Class counsel have substantial experience litigating class action lawsuits as both class and defense counsel.
Plaintiff also points to the settlement in demonstrating her and her counsel's adequacy. See Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir. 1982) (reasoning "[i]t will follow generally that an attorney who secures and submits a fair and adequate settlement has represented the client class fairly and adequately"). The settlement obtained by Plaintiff and Class counsel is favorable to the Class. It provides a Class recovery that is likely more than the maximum recovery permissible under the FDCPA. The maximum liability for a defendant in a class action is the lesser of $500,000 or 1% of its net worth. 15 U.S.C. § 1692k(a)(2)(B). The settlement creates a class settlement fund of $7,000.00, which is more than 1% of Defendant's net worth, the maximum recovery allowable. (Doc. 21-2, ¶ 7; see also Doc. 27); see Tourgeman v. Nelson & Kennard, 900 F.3d 1105, 1109 (9th Cir. 2018). The Court finds there is adequacy of representation.
The FDCPA limits a defendant's liability in a class action to statutory damages not exceeding the lesser of $500,000 or one percent of the defendant's net worth. 15 U.S.C. § 1692k(a)(2)(B). Defendant's Certified Public Account, Faulk & Winkler, LLC, prepared a Financial Report for Eaton Group Attorneys, LLC (the "Financial Report"), which shows Defendant's net worth. (Doc. 21-2, ¶ 7 and 27). Plaintiff's counsel deposed Tommy Lejeune, managing partner of Faulk & Winkler, LLC regarding the details of the Financial Report.
The settlement in this case divides pro-rata the total sum of $7,000.00 among a class of over 1,000 persons. (Doc. 21-3 at 5.) This kind of case is described as a "negative value" suit—where the possible recovery is less than the cost of bringing the suit. Castano v. Am. Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996) ("The most compelling rationale for finding superiority in a class action" is "the existence of a negative value suit"). Here, the Court has no doubt that this part of the Rule 23(b)(3) is satisfied. See, e.g., Bonett v. Education Services, Inc., No. 01-6528, 2003 WL 21658267, at *7 (E.D. Pa. May 9, 2003) (approving class action settlement of $22,000, netting approximately $77.46 for each class member).
A class action is superior to other available methods for the fair and efficient adjudication of the controversy in this case because a class action resolution of the issues described above outweighs the difficulties in management of the class and allows access to the courts for those who might not gain such access standing alone. Castano, 84 F.3d at 740.
In addition, the Court finds that the causes of action forming the basis of the class claims in this case are such that the prosecution of separate actions by individual members of the class would create the risk of establishing incompatible standards of conduct for Defendant. Due to that, and the efficiencies of proceeding in a single case to resolve over 1,000 identical claims, class treatment is far superior to other forms of resolution.
A district court must approve the dismissal or compromise of a class action. Fed. R. Civ. P. 23(e); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); In re Pool Prods., 310 F.R.D. at 314. The approval process is meant to "ensure that the settlement is in the interest of the class, does not fairly impinge on the rights and interest of dissenters, and does not merely mantle oppression." In re Pool Prods., 310 F.R.D. at 314 (quoting Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983), in turn quoting Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir. 1978)).
Although both parties desire settlement, this Court is not at liberty to merely rubberstamp approval. Rather, district judges must independently evaluate the settlement for fairness and, in so doing, must "exercise the highest degree of vigilance in scrutinizing [the] proposed settlement." In re Pool Prods., 310 F.R.D. at 314 (quoting Reynolds v. Nat'l Bank, 288 F.3d 277, 279-80 (7th Cir. 2002); see also Manual for Complex Litigation (Fourth) Section 21.61 (2004).
However, "[t]he public interest strongly favors the voluntary settlement of class actions." In re Oil Spill, 910 F. Supp. 2d at 930 (citing, inter alia, Kincade v. Gen. Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981)). "Because the public interest strongly favors the voluntary settlement of class actions, there is a strong presumption in favor of finding the settlement fair, reasonable and adequate." Id. at 930-31 (citing, inter alia, Collins v. Sanderson Farms, Inc., 568 F.Supp.2d 714, 720 (E.D. La. 2008)).
Where, as here, the motion is for preliminary, and not final, approval, the standards are less stringent. In re Pool Prods., 310 F.R.D. at 314 (citing Karvaly v. eBay, Inc., 245 F.R.D. 71, 86 (E.D.N.Y. 2007)); Manual, supra, Section 21.63 ("At the stage of preliminary approval, the questions are simpler, and the court is not expected to, and probably should not, engage in analysis as rigorous as is appropriate for final approval."). "If the proposed settlement discloses no reason to doubt its fairness, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, does not grant excessive compensation to attorneys, and appears to fall within the range of possible approval, the court should grant preliminary approval." In re Pool Prods., 310 F.R.D. at 314-15 (citations omitted).
Nonetheless, the 2018 amendment to Rule 23(e) makes clear that direct notice of a proposed class settlement should go to class members who would be bound by the proposal only "if giving notice is justified by the parties' showing that the court will likely be able to (i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of the judgment on the proposal." Fed. R. Civ. P. 23(e)(1)(B) (emphasis added).
"In determining the fairness, adequacy and reasonableness of the proposed compromise, the inquiry should focus upon the terms of the settlement." Cotton, 559 F.2d at 1330.
Rule 23(e)(2) was amended in 2018 to provide:
The 2018 Advisory Committee Note to 23(e)(2) suggests that these factors are not intended to be exclusive:
Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018 amendment (emphasis added).
In the Fifth Circuit, fairness, adequacy and reasonableness are typically measured by the six so-called "Reed factors": (1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the factual and legal obstacles [to] prevailing on the merits; (5) the possible range of recovery and the certainty of damages; and (6) the respective opinions of the participants, including class counsel, class representative, and the absent class members. Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983) (citing Parker, 667 F.2d at 1209); see also Vedol Leading Health Care of La., Inc., 15-cv-2665, 2017 WL 4250060, at *2 (W.D. La. Sept. 7, 2017); In re Oil Spill, 910 F. Supp. 2d at 931.
There is, not surprisingly, overlap between the 2018 amendment's fairness, reasonableness and adequacy considerations and those set out in the Fifth Circuit test. This Court will therefore combine the two in its review and analysis.
As set out earlier in this ruling, the Court is satisfied that both the Class representative and Class counsel have adequately and diligently represented the Class. The Court has carefully reviewed the terms of the proposed settlement and the proposed settlement seems fair in all respects. It was negotiated by experienced, informed counsel. Plaintiff is represented by a law firm with substantial experience in litigating complex class actions and is familiar with the factual and legal issues of the case. The Defendant is similarly represented by experienced and able counsel who is familiar with the factual and legal issues of the case.
The Court accepts counsels' representations that negotiations were rigorous, hard-fought, and were conducted at arm's length. The Parties discussed settlement for over a year and engaged in extensive discovery so that Class counsel could evaluate the maximum class recovery possible. The Parties were eventually able to reach an agreement, as laid out in the Class Settlement Agreement. (See Doc. 21-3). There is no evidence of fraud or collusion.
By reaching a favorable settlement prior to dispositive motions or trial, Plaintiff is avoiding expense and delay and ensuring recovery for the Class. Even where the claims are not particularly complex, approval of settlement is favored where settling "avoids the risks and burdens of potentially protracted litigation." In re Educ. Testing Serv. Praxis Principles of Learning & Teaching, Grades 7-12 Litig., 447 F.Supp.2d 612, 620 (E.D. La. 2006).
This case is no exception. A trial would be lengthy, burdensome, and would consume tremendous time and resources of the Parties and the Court. Any judgment would likely be appealed, further extending the litigation. The settlement, on the other hand, makes monetary and injunctive relief available to Class members in a prompt and efficient manner.
The amount of the settlement equals or exceeds the maximum recovery under the limited damages available under the statute sued upon.
Although Plaintiff believes her case is strong, it is subject to risk. Litigation is inherently risky and full of impediments, even where a defendant "all but admitted" and "the plaintiffs had a strong chance of proving" liability. In re Educ. Testing Serv. Praxis Principles of Learning & Teaching, Grades 7-12 Litig., 447 F. Supp. 2d at 620-21.
"A district court faced with a proposed settlement must compare its terms with the likely rewards the class would have received following a successful trial of the case." Reed, 703 F.2d at 172; Cotton, 559 F.2d at 1330. A trial on the merits would involve risks for Plaintiff as to both liability and damages. While Plaintiff believes she could ultimately establish liability, it is very unlikely the Class could obtain the recovery it obtained through settlement. Further, this would require the time and resources required to litigate dispositive motions and prevail at trial, and then prevail again on the inevitable appeals of class certification, liability, and damages. Litigation to judgment further creates the risk that any judgment against the Defendant will not be collectible.
Class counsel are experienced, realistic, and understand that the resolution of liability issues, the outcome of the trial, and the likely appeals process, are inherently uncertain in terms of outcome and duration. The proposed settlement alleviates these uncertainties. This factor thus weighs in favor of approval.
"This factor asks whether the parties have obtained sufficient information `to evaluate the merits of the competing positions.'" In re Educ. Testing Serv. Praxis Principles of Learning & Teaching, Grades 7-12 Litig., 447 F. Supp. 2d at 620 (quoting Ayers, 358 F.3d at 369). "[T]he question is not whether the parties have completed a particular amount of discovery, but whether the parties have obtained sufficient information about the strengths and weaknesses of their respective cases to make a reasoned judgment about the desirability of settling the case on the terms proposed. . . ." Id. at 620-21. "[W]hen the settlement proponents have taken affirmative steps to gather data on the claims at issue, and the terms of the settlement or settlement negotiations are not patently unfair, the Court may rely on counsel's judgment that the information gathered was enough to support a settlement." Id. at 621 (citing In re Corrugated Container, 643 F.2d at 211).
The Parties' discovery here meets this standard. The precise issue in this action has already been litigated on a single-plaintiff basis, with the same counsel appearing for the plaintiff and defendant. Brandon v. Eaton Grp. Attorneys, LLC, 2017 WL 345864 (E.D. La. 2017). Thus, the main issues in this class action were class liability and damages—the latter concerning Defendant's net worth. The Parties engaged in multiple rounds of discovery and a deposition to fully develop these issues. Class counsel have reviewed hundreds of pages of documents and carefully questioned Defendant's Certified Public Accountant to reach the best position to analyze the benefits of class settlement. The discovery, litigation history, negotiations, and settlement itself all favor settlement at this stage in the litigation.
When reviewing a class settlement, the court must analyze the recovery within the possible range of recovery. Parker, 667 F.2d at 1209. "In considering the range of possible recovery, the Court need not consider recoveries that are beyond the range of the most minimal probability." In re Educ. Testing Serv. Praxis Principles of Learning & Teaching, Grades 7-12 Litig., 447 F. Supp. 2d at 622.
That the settlement amount represents something less than the total potential recovery does not, of course, warrant withholding approval. Indeed, "[a] settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery." Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988), aff'd, 899 F.2d 21 (11th Cir. 1990); see also City of Detroit v. Grinnell Corp., 356 F.Supp. 1380, 1386 (S.D.N.Y. 1972), aff'd in part, rev'd on other grounds, 495 F.2d 448 (2d Cir. 1974) (a recovery of 3.2% to 3.7% of the amount sought is "well within the ball park"); McNeal v. Valderamma, 2015 U.S. Dist. LEXIS 49830, at *17 (C.D. Cal. 2015) (approving a settlement of $75,000 when potential damages were $1.2 million, or about 6%); In re Toys R US FACTA Litig., 295 F.R.D. 438, 453 (C.D. Cal. 2014) (approving settlement with vouchers (not cash) potentially worth a maximum of three percent (3%) if all possible claims were actually made, or $391.5 million aggregate voucher potential where the class could have recovered $13.05 billion); In re Pool Prods., 310 F.R.D. at 316 (approving a $600,000 settlement when the potential recovery was $23,951,893).
As stated earlier, the FDCPA limits a defendant's liability in a class action to statutory damages not exceeding the lesser of $500,000 or one percent of the defendant's net worth. 15 U.S.C. § 1692k(a)(2)(B). Through extensive efforts, Class Counsel was able to achieve a class recovery of $7,000.00, which is more than 1% of Defendant's net worth. (Doc. 21-2, ¶ 7; Doc. 27.) This amount represents substantial value given the Defendant's limited financial condition and the attendant risks of litigation. Although the individual recovery is small (estimated between $6.66 to $66.66 per claimant depending on the number of class members who choose to participate, see Doc. 21-4 at 2), the Class recovery could only be higher if Plaintiff were able to convince the Court that Defendant's net worth is substantially higher than the number provided by Defendant's accountant. Thus, considering a greater class recovery would be an exercise in considering recoveries that are beyond the range of the most minimal probability, as discussed in In re Educ. Testing, this amount is fair. Bonett, 2003 WL 21658267, at *7.
Class counsel and the Class representative strongly believe this settlement is fair and beneficial to all parties involved. (Doc. 21-1 at 20.) Notice of the settlement and its details have not yet been issued to the class. The Court will more fully analyze this factor after Class members are given the opportunity to opt out or object.
The Agreement (Doc. 21-1 at 9) provides the following:
While the method of mailing is unclear, the Court finds for purposes of preliminary approval, subject to review, clarification and modification prior to final approval, if necessary, that the proposed method is satisfactory and this factor is satisfied.
The December 2018 amendment to Rule 23 requires "[t]he parties seeking approval [to] file a statement identifying any agreement made in connection with the proposal." Fed. R. Civ. P. 23(e)(3). Rule 23(e)(2)(C)(iii) mandates that the Court "take into account" "any agreement required to be identified under Rule 23(e)(3)." Here the only agreement identified by the Parties is the Settlement Agreement under consideration, and the Parties have identified no other "side" agreements.
An attorney's fee of $22,500 was negotiated as a part of the settlement. The settlement agreement also provides:
(Doc. 21-1 at 9.) At the Court's request, counsel for Plaintiff provided a schedule of hours spent through the October 31, 2018 (Doc. 28-2), and other documentation in connection with their representation in this matter (Doc. 28-1, 3-5). The attorneys' fee when calculated based on the hours spent by the three attorneys and paralegals (126.8) and billed at an hourly rate suggested by Plaintiffs' counsel totals $31,950. (Doc. 28-2 at 4.) The exceeds the $22,500 proposed.
Bonett v. Education Debt Services is analagous to the present case. In Bonett, also a case brought under FDCPA, plaintiffs proposed a class settlement (not including attorney fees) of $4,000 to the Class representative and approximately $22,000 to the Class. When divided equally among the 284 claimants, each claimant would receive $77.46. The Court approved $69,000 in attorney fees. Bonnet, 2003 WL 21658267, at *8.
Id.
The Court reserves judgment on final approval of costs and/or fees, but the Court has carefully reviewed these materials and, especially for the preliminary approval purposes, finds that the proposed fee is fair and reasonable under the circumstances.
This factor is easily met as each class member, save the Class representative, will receive the same amount. An additional amount for the Class representative is justified given the representative's involvement and work performed in the case.
In conclusion, The Court finds that the proposed settlement is fair, adequate and reasonable under the circumstances.
Rule 23(c)(2) requires the notice to include the following: 1) the nature of the action; 2) the definition of the class certified; 3) the class claims, issues or defenses; 4) that a class member may enter an appearance through an attorney if the member so desires; 5) that the court will exclude from the class any member who requests exclusion; 6) the time and manner requesting exclusion; and 7) the binding effect of a class judgment on members.
The Court has reviewed the proposed Notice (Doc. 53-2 at 25-32, the Settlement Agreement), and finds that the proposed Notice meets the appropriate standard under Rule 23(c)(2) and 23(e)(1). It fairly states the terms of the settlement in plain language without resort to legalisms and provides clear direction to class members on how to object and remove themselves from the settlement. It meets the specific requirements of both statutes.
The Court finds that the Class Notice gives fair notice to the Class of the terms of the settlement and the ways in which Class members can participate (or not) in the settlement, thus satisfying the requirements of Fed. R. Civ. P. 23, and of due process.
Defendant's insurer will pay the costs of such notice in addition to the amount they paid into the Settlement Fund. The notice describes the terms of the settlement; informs the class about their legal rights and options (including their right to exclude themselves from portions of the settlement or to object); informs the Class that Plaintiff will seek to recover costs, attorneys' fees, and a service award separate from the $7,000.00 Settlement Fund; and provides specific information regarding the date, time, and place of the final approval hearing.
This individualized Notice aims to maximize participation by listing a specific dollar figure the Class member may receive so as to encourage Class members to complete a claim form. The customization also minimizes confusion by ensuring that Class members learn the information that is most relevant to their particular circumstances. And the notice provides enough information about the settlement generally so that Class members understand the entire settlement and have the opportunity to lodge any objection they may have.
Once the settlement funds have been received by Class counsel, the funds will be distributed to the class members by mail at their last known address.
The detailed information in the proposed notice exceeds this bare minimum and fully complies with the requirements of Fed. R. Civ. P. 23(c)(2) and Rule 23(e)(1). It fairly states the terms of the settlement in plain language without resort to legalisms and provides clear direction on how to object and remove themselves from the settlement.
The standard to be followed in measuring the adequacy of the method of notice is nicely summarized by Judge Vance in the case of In re Pool Products Distribution Market Antitrust Litigation:
310 F.R.D. at 317.
Here the proposed method of notification proposed is as follows:
The Court finds that this notice, opt-out, and objection process set out in the Agreement is fair, consistent with statutory requirements and amply protects the due process rights of absent class members to be informed of and participate in the settlement.
It is therefore
