Shahar Lushe v. Verengo Inc

Filing 137

FINAL JUDGMENT AND ORDER OF DISMISSAL by Judge Andre Birotte Jr.: The Court having held a Final Approval Hearing on 5/2/2016, notice of the Final Approval Hearing having been duly given in accordance with this Court's Order (1) Conditionally Cer tifying a Settlement Class, (2) Preliminarily Approving Class Action Settlement, (3) Approving Notice Plan, and (4) Setting Final Approval Hearing ("Preliminary Approval Order") 135 . It is hereby ORDERED, ADJUDGED AND DECREED as follows: The Court hereby finally approves the Settlement Agreement and the Settlement contemplated thereby, and finds that the terms constitute, in all respects, a fair, reasonable, and adequate settlement as to all Settlement Class Members in accordance wit h Rule 23 of the Federal Rules of Civil Procedure, and directs its consummation pursuant to its terms and conditions. The Court hereby finally approves the Settlement Agreement and the Settlement contemplated thereby, and finds that the terms constit ute, in all respects, a fair, reasonable, and adequate settlement as to all Settlement Class Members in accordance with Rule 23 of the Federal Rules of Civil Procedure, and directs its consummation pursuant to its terms and conditions. Each and every Settlement Class Member, and any person actually or purportedly acting on behalf of any Settlement Class Member(s), is hereby permanently barred and enjoined from commencing, instituting, continuing, pursuing, maintaining, prosecuting, or enforcing any Released Claims directly or indirectly, in any judicial, administrative, arbitral, or other forum, against the Released Parties. The Court approves Class Counsel's application for $591,250 in attorneys' fees and $31,443.44 in costs, and for a service award to the Settlement Class representatives, Shahar Lushe and William Youngblood 131 , in the amount of $2,500 each. The Court orders that this Final Judgment and Order of dismissal shall constitute a final judgment pursuant to Rule 54 of the Federal Rules of Civil Procedure (MD JS-6, Case Terminated). (gk)

5

Gretchen M. Nelson, CSB #112566
Email: [e-mail]
KREINDLER & KREINDLER
707 Wilshire Boulevard, Suite 3600
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]

6

[Additional counsel appearing on signature page]

1
2
3
4

JS-6

7
8

Attorneys for Plaintiffs and the Proposed Class
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

9
10
11
12

SHAHAR LUSHE and WILLIAM
YOUNGBLOOD, individually and on
behalf of all others similarly situated,

13
14
15
16
17
18
19
20

Plaintiffs,
v.
VERENGO, INC. d/b/a VERENGO
SOLAR,
Defendant.

NO. CV13-07632-AB (PJWx)
[PROPOSED] FINAL
JUDGMENT AND ORDER OF
DISMISSAL
HON. ANDRÉ BIROTTE JR.
Complaint Filed: October 16, 2013
DATE:
May 2, 2016
TIME:
10:00 a.m.
COURTROOM: 4 Spring Street
Second Floor

21
22
23

The Court having held a Final Approval Hearing on May, 2, 2016, notice of

24

the Final Approval Hearing having been duly given in accordance with this Court’s

25

Order (1) Conditionally Certifying a Settlement Class, (2) Preliminarily Approving

26

Class Action Settlement, (3) Approving Notice Plan, and (4) Setting Final

27

Approval Hearing (“Preliminary Approval Order”), and having considered all
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL - 1
CASE NO. CV13−07632 AB (PJWx)

1

matters submitted to it at the Final Approval Hearing and otherwise, and finding no

2

just reason for delay in entry of this Final Judgment and good cause appearing

3

therefore,

4

It is hereby ORDERED, ADJUDGED AND DECREED as follows:

5

1.

The Settlement Agreement dated November 30, 2015, including its

6

exhibits (the “Settlement Agreement”), and the definition of words and terms

7

contained therein are incorporated by reference in this Order. The terms of this

8

Court’s Preliminary Approval Order are also incorporated by reference in this

9

Order.

10

2.

This Court has jurisdiction over the subject matter of the Actions and

11

over the Parties, including all members of the following Settlement Class certified

12

for settlement purposes in this Court’s Preliminary Approval Order:

13

SETTLEMENT CLASS: all persons to whom, on or after
October 16, 2009 through the date of Preliminary
Approval, Verengo or any of its affiliates or subsidiaries,
or any entity acting on its behalf, or any entity contracted
to provide leads to Verengo, placed a non-emergency
telephone call to a cellular telephone through the use of
an automatic telephone dialing system and/or an artificial
or prerecorded voice, to a residential line using an
artificial or prerecorded voice, or to a telephone number
registered on the National Do-Not-Call registry, without
the consent of such person.
Excluded from the
Settlement Class are the Judge to whom the Action is
assigned and any member of the Judge’s staff and
immediate family, as well as all persons who validly
request exclusion from the Settlement Class.

14
15
16
17
18
19
20
21
22
23
24
25

3.

Attached hereto as Exhibit A is a list of the persons who validly

requested exclusion from the Settlement Class.

26
27
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL - 2
CASE NO. CV13−07632 AB (PJWx)

1

4.

The Court hereby finds that the Settlement Agreement is the product

2

of arm’s length settlement negotiations between Plaintiffs, Class Counsel and

3

Verengo.

4

5.

The Court hereby finds and concludes that Class Notice was

5

disseminated to members of the Settlement Class in accordance with the terms set

6

forth in Section III.E of the Settlement Agreement, and that Class Notice and its

7

dissemination were in compliance with this Court’s Preliminary Approval Order.

8
9

6.

The Court further finds and concludes that the Class Notice and

claims submission procedures set forth in Sections III.E – F of the Settlement

10

Agreement fully satisfy Rule 23 of the Federal Rules of Civil Procedure and the

11

requirements of due process, were the best notice practicable under the

12

circumstances, provided individual notice to all members of the Settlement Class

13

who could be identified through reasonable effort, and support the Court’s exercise

14

of jurisdiction over the Settlement Class as contemplated in the Settlement and this

15

Order.

16

7.

This Court hereby finds and concludes that the notice provided by the

17

Claims Administrator to the appropriate State and federal officials pursuant to 28

18

U.S.C. § 1715 fully satisfied the requirements of that statute.

19

8.

The Court hereby finally approves the Settlement Agreement and the

20

Settlement contemplated thereby, and finds that the terms constitute, in all

21

respects, a fair, reasonable, and adequate settlement as to all Settlement Class

22

Members in accordance with Rule 23 of the Federal Rules of Civil Procedure, and

23

directs its consummation pursuant to its terms and conditions.

24
25
26
27

9.

This Court hereby dismisses the Action with prejudice, without costs

to any party, except as expressly provided for in the Settlement Agreement.
10.

Upon Final Approval (including, without limitation, the exhaustion of

any judicial review, or requests for judicial review, from this Final Judgment and
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL - 3
CASE NO. CV13−07632 AB (PJWx)

1

Order of Dismissal), the Plaintiffs and each and every one of the Settlement Class

2

Members unconditionally, fully, and finally releases and forever discharges the

3

Released Parties from the Released Claims. In addition, any rights of the

4

Settlement Class representatives and each and every one of the Settlement Class

5

Members to the protections afforded under Section 1542 of the California Civil

6

Code and/or any other similar, comparable, or equivalent laws, are terminated.

7

11.

Each and every Settlement Class Member, and any person actually or

8

purportedly acting on behalf of any Settlement Class Member(s), is hereby

9

permanently barred and enjoined from commencing, instituting, continuing,

10

pursuing, maintaining, prosecuting, or enforcing any Released Claims (including,

11

without limitation, in any individual, class or putative class, representative or other

12

action or proceeding), directly or indirectly, in any judicial, administrative, arbitral,

13

or other forum, against the Released Parties. This permanent bar and injunction is

14

necessary to protect and effectuate the Settlement Agreement, this Final Judgment

15

and Order of Dismissal, and this Court’s authority to effectuate the Settlement

16

Agreement, and is ordered in aid of this Court’s jurisdiction and to protect its

17

judgments.

18

12.

The Settlement Agreement (including, without limitation, its exhibits),

19

and any and all negotiations, documents, and discussions associated with it, shall

20

not be deemed or construed to be an admission or evidence of any violation of any

21

statute, law, rule, regulation or principle of common law or equity, of any liability

22

or wrongdoing, or of the truth of any of the claims asserted by Plaintiffs in the

23

Action, and evidence relating to the Settlement Agreement shall not be

24

discoverable or used, directly or indirectly, in any way, whether in the Action or in

25

any other action or proceeding, except for purposes of enforcing the terms and

26

conditions of the Settlement Agreement, the Preliminary Approval Order, and/or

27

this Order.
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL - 4
CASE NO. CV13−07632 AB (PJWx)

1

13.

If for any reason the Settlement terminates or Final Approval does not

2

occur, then certification of the Settlement Class shall be deemed vacated. In such

3

an event, the certification of the Settlement Class for settlement purposes shall not

4

be considered as a factor in connection with any subsequent class certification

5

issues, and the Parties shall return to the status quo ante in the Actions, without

6

prejudice to the right of any of the Parties to assert any right or position that could

7

have been asserted if the Settlement had never been reached or proposed to the

8

Court.

9

14.

In the event that any provision of the Settlement or this Final

10

Judgment and Order of Dismissal is asserted by Verengo as a defense in whole or

11

in part to any Claim, or otherwise asserted (including, without limitation, as a basis

12

for a stay) in any other suit, action, or proceeding brought by a Settlement Class

13

Member or any person actually or purportedly acting on behalf of any Settlement

14

Class Member(s), that suit, action or other proceeding shall be immediately stayed

15

and enjoined until this Court or the court or tribunal in which the claim is pending

16

has determined any issues related to such defense or assertion. Solely for purposes

17

of such suit, action, or other proceeding, to the fullest extent they may effectively

18

do so under applicable law, the Parties irrevocably waive and agree not to assert,

19

by way of motion, as a defense or otherwise, any claim or objection that they are

20

not subject to the jurisdiction of the Court, or that the Court is, in any way, an

21

improper venue or an inconvenient forum. These provisions are necessary to

22

protect the Settlement Agreement, this Order and this Court’s authority to

23

effectuate the Settlement, and are ordered in aid of this Court’s jurisdiction and to

24

protect its judgment.

25
26

15.

The Court approves Class Counsel’s application for $591,250 in

attorneys’ fees and $31,443.44 in costs, and for a service award to the Settlement

27
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL - 5
CASE NO. CV13−07632 AB (PJWx)

1

Class representatives, Shahar Lushe and William Youngblood, in the amount of

2

$2,500 each.

3

16.

Finding that there is no just reason for delay, the Court orders that this

4

Final Judgment and Order of dismissal shall constitute a final judgment pursuant to

5

Rule 54 of the Federal Rules of Civil Procedure. The Clerk of the Court is directed

6

to enter this Order on the docket forthwith.

7

IT IS SO ORDERED.

8
9
10
11

Dated: May 2, 2016
HON. ANDRÉ BIROTTE JR.
United States District Court Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL - 6
CASE NO. CV13−07632 AB (PJWx)

1

EXHIBIT A

2

SETTLEMENT CLASS EXCLUSION REQUESTS

3
4
5
6
7
8
9
10
11

Alan, Jason
Cao, David V.
Crone, Olive
Israel, Kathleen A.
Kaur, Kirandeep
Myers, Isaac
Niu, Jing H.
Peterson, Betty
Rorty, Bruce
Roylance, Gerald
Suzuki, Tadashi
Torres, Maria D.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL - 7
CASE NO. CV13−07632 AB (PJWx)