Paul Mankin v. Mountain West Research Center LC et al

Filing 35

ORDER AND FINAL JUDGMENT by Judge Dale S. Fischer. (MD JS-6, Case Terminated)."see final judgment for specifics" (bp)

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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PAUL MANKIN, individually and on
behalf of all others similar situated,
Plaintiff,

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vs.
MOUNTAIN WEST RESEARCH
CENTER, L.C., and DOES 1 through
10, inclusive, and each of them,

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Case No. 2:13-cv-06447-DSF-AGR
CLASS ACTION
ORDER AND FINAL
JUDGMENT

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On July 8, 2014, Plaintiff Paul Mankin and Defendant Mountain West

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Research Center (MWRC) entered into a Class Action Settlement Agreement

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(Agreement), which is subject to review under Rule 23 of the Federal Rules of

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Civil Procedure. On July 28, 2014, Plaintiff filed the Agreement, along with

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Plaintiff’s Motion for Preliminary Approval of Class Action Settlement and

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Certification of Settlement Class.

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Defendant served written notice of the proposed class action settlement
pursuant to 28 U.S.C. § 1715.
On September 16, 2014, the Court entered an Order of Preliminary Approval

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of Class Action Settlement. Pursuant to the Preliminary Approval Order, the

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Court, among other things: (i) preliminarily certified (for settlement purposes only)

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a class of plaintiffs (Class Members) with respect to the claims asserted in the

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Action; (ii) preliminarily approved the proposed settlement; (iii) appointed Plaintiff

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Paul Mankin as the Class Representative; (iv) appointed John Kristensen and David

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Weisberg of Kristensen Weisberg, LLP as Class Counsel; and (v) set the date and

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time of the Final Approval Hearing for January 12, 2015, at 1:30 p.m.

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On December 15, 2014, Class Counsel timely filed their motion for
attorneys’ fees, costs, and incentive award.
On December 15, 2014, Plaintiff filed the Motion for Final Approval of

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Class Action Settlement Agreement, requesting final certification of the

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settlement class under Rule 23(b)(3) and final approval of the proposed class

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action settlement.

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On January 12, 2015, a Final Approval Hearing was held to determine

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whether the lawsuit satisfies the applicable prerequisites for class action

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treatment and whether the proposed settlement is fundamentally fair, reasonable,

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adequate, and in the best interests of the Class Members and should be approved

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by the Court. The Court has read and considered the Agreement, Final Approval

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Motion, and the record. All capitalized terms used in this Order have the

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meanings defined in this Order or in the Agreement.

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IT IS ORDERED:

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1.

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Agreement.

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2.

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been satisfied.

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3.

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only, as a class action on behalf of the following Settlement Class members with

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respect to the claims asserted in the Action:

The Court has subject matter jurisdiction to approve this settlement and the

The Court finds that the prerequisites of Rule 23(a) and Rule 23(b)(3) have

Pursuant to Rule 23(b)(3), the Action is certified, for settlement purposes

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All mobile subscribers who were called by Mountain West Research

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Center on their mobile phones to 15,703 unique mobile numbers in

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connection with the Survey Campaigns for campaigns on May 18 to

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May 20, 2013 and July 22 to 24, 2013.

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Defendant and its subsidiaries and affiliates, employees, officers, directors,

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agents and representatives and its family members; Class Counsel; all judicial

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officers who have presided over the Lawsuit; and all persons who timely elected

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to become Opt-Outs from the Settlement Class in accordance with the

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Preliminary Approval Order are excluded from the Settlement Class.

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4.

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and adequate as to all Parties and in compliance with all requirements of due

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process and applicable law, as to and in the best interests of all Parties, and

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directs the Parties and their counsel to implement and consummate the

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Agreement in accordance with its terms and provisions.

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of the Final Judgment, this Final Judgment is intended by the Parties and the

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Court as binding on and having res judicata and preclusive effect in all pending

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and future lawsuits or other proceedings encompassed by the Release (as set

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forth in Paragraph I.24) maintained by or on behalf of Named Plaintiff Paul

The Court grants final approval to the Agreement as being fair, reasonable,

To the extent permitted by law and without affecting the other provisions

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Mankin and all other Settlement Class Members, as well as their agents, heirs,

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executors or administrators, successors and assigns.

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(i) constituted the best practicable notice, (ii) constituted notice that was

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reasonably calculated under the circumstances to apprise Settlement Class

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Members of the pendency of the Lawsuit, of their right to object to or exclude

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themselves from the proposed settlement, of their right to appear at the Final

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Approval Hearing, and of their right to monetary and other relief; (iii) constituted

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reasonable, due, adequate, and sufficient notice to all persons entitled to receive

The Court finds that the Class Notice sent to Settlement Class Members:

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notice; and (iv) met all applicable requirements of due process and any other

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applicable law.

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Settlement Class.

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of Kristensen Weisberg, LLP as Class Counsel.

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represented the Settlement Class for purposes of entering into and implementing

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the proposed settlement and the Settlement Agreement.

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conclusively compromised, settled, dismissed, and released any and all Released

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Claims against Defendant and the Releasees.

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fee award, requiring an “adequate explanation in the record of any ‘special

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circumstances’ justifying a departure.” In re Bluetooth Headset Prods. Liab.

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Litig., 654 F.3d 935, 942 (9th Cir. 2011). Although Class Counsel’s lodestar

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amount is significantly lower than 25% of the common fund, the Court does not

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find that to be a “special circumstance” justifying a significant downward

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departure. The Court concludes that the lodestar analysis should be given little

The Court certifies plaintiff Paul Mankin as the representative of the

The Court certifies John P. Kristensen, Esq. and David L. Weisberg, Esq.

The Court finds that Class Counsel and the Named Plaintiff adequately

The Court finds that the Named Plaintiff and the Settlement Class have

The Ninth Circuit has established 25% as the benchmark for a reasonable

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weight in determining the appropriate fee. Had the lodestar been approximately

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equal to the 25% benchmark, the Court would most certainly have declined to

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allow a multiplier. Under the circumstances, the Court finds that Class

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Counsel’s award will be so substantially above the lodestar (even assuming the

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lodestar figure were accurate) that an award of 25% of the common fund is

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adequate to compensate counsel for both their fees and costs. Therefore, the

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Court awards Class Counsel in attorneys’ fees and costs of $373,750, which sum

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the Court finds to be fair and reasonable. This award and the reimbursement of

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expenses shall be paid from the Settlement Fund by the Settlement Administrator

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no later than seven business days after the Effective Date.

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settlement and in recognition of the Named Plaintiff’s efforts on behalf of the

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Settlement Class, the Named Plaintiff is awarded $1,000 as an incentive award

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directly related to his representation of the Settlement Class. The substantiation

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of the Named Plaintiff’s efforts was somewhat vague and unsupported, and

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(unlike the claims of many other class action plaintiffs), he asserts no risk

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involved in participating in the litigation. The Court finds that a somewhat

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reduced incentive award is fair and reasonable. This award shall be paid by the

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Settlement Administrator from the Settlement Fund via a check made out to Paul

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Mankin and delivered to Class Counsel no later than seven business days after

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the Effective Date.

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to create the Settlement Fund and distribute the monies in accordance with this

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Agreement and the Court’s Orders pertaining to the settlement. The Court

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authorizes payment to the Administrator of its fees and costs, as approved by

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Class Counsel, in an amount not to exceed $55,000. Should the Administrator’s

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costs exceed that amount, Class Counsel and the Administrator may seek further

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approval from the Court.

In addition to any recovery that the Named Plaintiff may receive under the

The Court orders the Settlement Administrator to take all steps necessary

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purposes of appeal, the Court reserves jurisdiction over the Settlement

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Administrator, Defendant, the Named Plaintiff, and the Settlement Class as to all

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matters relating to the administration, consummation, enforcement, and

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interpretation of the terms of the settlement and Final Order and Judgment and

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for any other necessary purposes.

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Settlement Class Members who have not been excluded from the Settlement

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Class shall be barred from asserting any Released Claims against Defendant and

Without affecting the finality of the Final Order and Judgment for

The Court orders that upon the Effective Date, the Named Plaintiff and all

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any Releasee, and shall have released any and all Released Claims against

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Defendant and all Releasees.

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related proceedings are not and should not in any event be offered or received as

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evidence of, a presumption, concession, or an admission of liability or of any

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misrepresentation or omission in any statement or written document approved or

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made by Defendant or any Releasee or the suitability of these or similar claims to

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class treatment in active litigation and trial; provided, however, that reference

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may be made to this Agreement and the settlement in such proceedings as may

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be necessary to effectuate this Agreement.

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is a complete list of all Settlement Class Members who have timely requested

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exclusion from the Settlement Class and, accordingly, shall neither share in nor

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be bound by the Final Order and Judgment; provided that any Opt-Out who

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subsequently provides written notice to the Settlement Administrator within 14

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days of the entry of this Order that he or she is rejoining the Settlement Class

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shall be deemed to be a Settlement Class Member and therefore bound by the

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Final Order and Judgment and entitled to the benefits of the settlement.

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The Court determines that the Agreement and the settlement and any

The Court approves the Opt-Out List and determines that the Opt-Out List

The Court authorizes the Parties, without further approval from the Court,

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to agree to and adopt such amendments, modifications and expansions of the

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Agreement and all Exhibits hereto that (i) shall be consistent in all material

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respects with the Final Order and Judgment and that (ii) do not limit the rights of

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the Parties or Settlement Class Members.

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who have not been properly excluded from the Settlement Class (i) from filing,

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commencing, prosecuting, intervening in, or participating as plaintiff, claimant or

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class member in any other lawsuit or administrative, regulatory, arbitration or

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other proceeding against Defendant in any jurisdiction based on, relating to or

The Court bars and permanently enjoins all Settlement Class Members

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arising out of the claims and causes of action or the facts and circumstances

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giving rise to the Lawsuit or the Released Claims; (ii) from filing, commencing

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or prosecuting a lawsuit or administrative, regulatory, arbitration or other

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proceeding against Defendant as a class action on behalf of any Settlement Class

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Members who have not timely excluded themselves (including by seeking to

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amend a pending complaint to include class allegations or seeking class

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certification in a pending action), based on, relating to, or arising out of the

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claims and causes of action or the facts and circumstances giving rise to the

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Lawsuit or the Released Claims; and (iii) from organizing Settlement Class

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Members who have not been excluded from the Settlement Class into a separate

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class for purposes of pursuing as a purported class action any lawsuit or

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arbitration or other proceeding (including by seeking to amend a pending

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complaint to include class allegations or seeking class certification in a pending

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action) against Defendant based on, relating to, or arising out of the claims and

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causes of action or the facts and circumstances giving rise to the Lawsuit or the

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Released Claims.

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dismissed with prejudice on the merits and in full and final discharge of any and

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all such claims, without fees or costs except as specifically provided in this

The Lawsuit (including all individual and class claims) shall be and is

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Order.

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captioned action in its entirety.

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Dismissal with Prejudice, the Court retains continuing and exclusive jurisdiction

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over the Parties and all matters relating to the Action and Agreement, including

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the administration, interpretation, construction, effectuation, enforcement, and

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consummation of the settlement and this order.

This Order is intended to be a final judgment disposing of the above

Without affecting the finality of this Final Judgment and Order of

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IT IS SO ORDERED.

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Dated: January 13, 2015

____________________________
Honorable Dale S. Fischer
United States District Judge

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