Carrie Couser v. Apria Healthcare Inc et al

Filing 51

FINAL JUDGMENT by Judge James V. Selna. For these reasons, the Court hereby approves Class Counsels Fee and Cost Application and awards to Class Counsel fees and costs in the total aggregate amount of $195,000. See Judgment for more information. Related to: Notice (Other) 49 . (MD JS-6, Case Terminated). (twdb)

1
2
3
4
5

KENNETH E. PAYSON (Admitted Pro Hac Vice)
[e-mail]
ASHLEY L. WATKINS (Admitted Pro Hac Vice)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
Tel: [phone]
Fax: [phone]

JS-6

SEAN M. SULLIVAN (State Bar No. 229104)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
7
865 S. Figueroa Street, Suite 2400
8 Los Angeles, California 90017-2566
Tel: [phone]
9 Fax: [phone]
6

10

Attorneys for Defendant and Counter-Plaintiff
APRIA HEALTHCARE LLC f/k/a
11 APRIA HEALTHCARE, INC.
12

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

13
14
15
16
17
18
19
20
21
22
23
24
25
26

CARRIE COUSER, on behalf of herself ) Case No. SACV13-00035-JVS (RNBx)
) [Assigned to Hon. James V. Selna]
and all others similarly situated,
)
)
Plaintiff,
) FINAL JUDGMENT
)
vs.
)
APRIA HEALTHCARE, INC. and DOES )
1 through 10, inclusive, and each of them, ) Action filed: January 9, 2013
)
)
Defendant.
)
)
)
APRIA HEALTHCARE, INC.
)
)
Counter-Plaintiff
)
)
vs.
)
)
CARRIE COUSER, an individual, on
)
behalf of all others similarly situated
)
)
Counter-Defendants
)

27
28
FINAL JUDGMENT
DWT 26410227v1 0025959-000028

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

THIS MATTER came before the Court on Representative Plaintiff’s Motion
for Final Approval of the Proposed Class Settlement. The Court has considered all
papers filed and proceedings in this matter and is fully informed regarding the facts
surrounding the proposed settlement. Based upon this information, the Court has
determined to approve the proposed settlement as fair, reasonable and adequate.
The Court hereby enters this Final Judgment, which constitutes a final adjudication
on the merits of all claims of the Settlement Class.
On October 27, 2014, this Court granted preliminary approval [Dkt. 45] to the
proposed settlement between Representative Plaintiff and Defendant Apria
Healthcare LLC (formerly known as Apria Healthcare, Inc.) (“Apria). The
proposed settlement resolves all of the Class’s claims against Apria in exchange for
Apria’s agreement to provide certain non-monetary relief, as well as Apria’s
agreement to pay claims made by eligible Class Members as set forth in the
Settlement Agreement and Release of Claims (“Agreement”) and debt forgiveness
as set forth in the Agreement. On March 9, 2015, this Court held a fairness hearing
to consider whether to grant final approval to the settlement and to consider Class
Counsel’s application for an award of attorneys’ fees and costs. The Court heard
argument from counsel. No one else elected to appear to voice their support for, or
objection to, the settlement and/or the Fee Application.
Having read, reviewed and considered the papers filed in support of and in
opposition to final approval of the settlement, including supporting declarations;
oral arguments of counsel; Class Counsel’s Fee Application; the Agreement; and
the pleadings, it is hereby
ORDERED, ADJUDGED AND DECREED that:
1.

The definitions and provisions of the Settlement Agreement and

Release of Claims (the “Agreement”) are incorporated in this Final Judgment as
though fully set forth herein.
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 1
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]

2.

1
2
3

with respect to and over all parties to the Agreement, including Representative
Plaintiff and all members of the Plaintiff Settlement Class.
3.

4
5
6
7

10
11
12
13

authority of the parties, and the result of extensive arm’s length negotiations with
the guidance of an experienced mediator.
4.

16

Approving Class Settlement, Conditionally Certifying Settlement Class, and
Approving Form and Manner of Notice (“Preliminary Approval Order”).
Accordingly, this Court makes final the conditional certification set forth in the
Preliminary Approval Order.
5.

19
20
21
22
23
24
25
26
27

No members of the Class have timely requested to be excluded from

the Class and the settlement. Accordingly, this Final Judgment shall bind all Class
Members.
6.

17
18

This Court confirms the proposed Settlement Class satisfies the

requirements of Fed. R. Civ. P. 23, as found in the Court’s Order Preliminarily

14
15

The Court approves the settlement and finds the settlement is, in all

respects, fair, reasonable, and adequate to the Plaintiff Settlement Class, within the

8
9

This Court has jurisdiction over the subject matter of the Agreement

The Court hereby grants final approval to the settlement and finds that

it is fair, reasonable, and adequate, and in the best interests of the Class as a whole.
No objections have been brought to the Court’s attention, whether properly filed or
not.
7.

Neither this Final Judgment nor the Agreement is an admission or

concession by Apria of the validity of any claims or of any liability or wrongdoing
or of any violation of law. This Final Judgment and the Agreement do not
constitute a concession and shall not be used as an admission or indication of any
wrongdoing, fault or omission by Apria or any other person in connection with any
transaction, event or occurrence, and neither this Final Judgment nor the Agreement
nor any related documents in this proceeding, nor any reports or accounts thereof,
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 2
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

shall be offered or received in evidence in any civil, criminal, or administrative
action or proceeding, other than such proceedings as may be necessary to
consummate or enforce this Final Judgment, the Agreement, and all releases given
thereunder, or to establish the affirmative defenses of res judicata or collateral
estoppel barring the pursuit of claims released in the Agreement.
8.

This Court hereby dismisses with prejudice all claims of

Representative Plaintiff and members of the Settlement Class against Apria arising
from the placement of telephone calls to any type of telephone line for any purpose,
regardless of the theory of recovery or alleged wrongdoing as set forth in the
Agreement.
9.

Representative Plaintiff, for herself and as the representative of the

Class, and on behalf of each Class Member who has not timely opted out and each
of their respective agents, successors, heirs, assigns, and any other person who can
claim by or through them in any manner, fully, finally, and forever irrevocably
release, relinquish, and forever discharge with prejudice all Released Claims against
the Released Parties.
10.

By operation of this judgment, the Representative Plaintiff and Apria

expressly waive, and each Class Member is deemed to have waived, any and all
claims, rights, or benefits they may have under California Civil Code § 1542 and
any similar federal or state law, right, rule, or legal principle that may apply.
California Civil Code § 1542 provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known
by him or her must have materially affected his or her
settlement with the debtor.

27
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 3
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

11.

Apria completed the delivery of class notice according to the terms of

the Agreement. The Notice given by Apria to the Settlement Class, which set forth
the principal terms of the Agreement and other matters, was the best practicable
notice under the circumstances. The notice program prescribed by the Agreement
was reasonable and provided due and adequate notice of these proceedings and of
the matters set forth therein, including the terms of the Agreement, to all parties
entitled to such notice. The Notice given to members of the Class satisfied the
requirements of Federal Rule of Civil Procedure 23 and the requirements of
constitutional due process. The Notice was reasonably calculated under the
circumstances to apprise Class Members of the pendency of this Action, all material
elements of the settlement, and their opportunity to exclude themselves from, object
to, or comment on the settlement and appear at the final fairness hearing. The Court
has afforded a full opportunity to all Class Members to be heard. Accordingly, the
Court determines that all members of the Settlement Class, except those who timely
excluded themselves from the Class, are bound by this Final Judgment.
12.

Apria served a notice of the proposed settlement upon the appropriate

state official of each State in which a Class member resides and upon the Attorney
General of the United States. The Court finds that more than ninety (90) days have
elapsed since Apria provided the required notice, as required by 28 U.S.C. §
1715(d).
13.

Without affecting the finality of this judgment, the Court retains

continuing jurisdiction over (a) implementation of the Agreement, distribution of
the settlement payments, incentive fees, and attorneys’ fees and costs contemplated
by the Agreement, and processing of the claims permitted by the Agreement, until
each and every act agreed to be performed pursuant to the Agreement has been
performed, and (b) all parties to this Action and members of the Plaintiff Settlement
Class for the purpose of enforcing and administering the Agreement.
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 4
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

14.

As an incentive payment in compensation for the time, effort, and risk

she undertook as representative of the Settlement Class, the Court hereby awards
$5,000 to Carrie Couser.
15.

The Court hereby awards attorneys’ fees and costs to compensate Class

Counsel for their time incurred and expenses advanced. The Court has concluded
that: (a) Class Counsel achieved a favorable result for the Class by obtaining
Apria’s agreement to certain debt forgiveness, non-monetary relief, and by making
funds available to Class Members, subject to submission of valid claims by eligible
Class Members; (b) Class Counsel devoted substantial effort to pre-and post-filing
investigation, legal analysis, and litigation; (c) Class Counsel prosecuted the Class’s
claims on a contingent fee basis, investing significant time and accumulating costs
with no guarantee that they would receive compensation for their services or
recover their expenses; (d) Class Counsel employed their knowledge of and
experience with class action litigation in achieving a valuable settlement for the
Class, in spite of Apria’s possible legal defenses and its experienced and capable
counsel; (e) Class Counsel have standard contingent fee agreements with
Representative Plaintiff, who has reviewed the Agreement and been informed of
Class Counsel’s attorney fee and cost application and has approved; and (f) the
Notice informed Class Members of the amount and nature of Class Counsel’s fee
and cost request under the Agreement, and Class Counsel filed and posted their Fee
Application in time for Class members to make a meaningful decision whether to
object to the Fee Application. For these reasons, the Court hereby approves Class
Counsel’s Fee and Cost Application and awards to Class Counsel fees and costs in
the total aggregate amount of $195,000. All such fees are in lieu of fees and costs
that Representative Plaintiff and/or the Class might otherwise have been entitled to
recover.

27
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 5
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1
2
3
4

16.

Apria shall pay the fee and cost awards to Class Counsel and the

incentive fees to Representative Plaintiff, as well as amounts due to eligible Class
Members who timely filed a claim under the Agreement, in accordance with and at
the times prescribed by the Agreement.

5
6

Dated this 13th day of March, 2015.

7

_______________________________
THE HON. JAMES V. SELNA
UNITED STATES DISTRICT JUDGE

8
9
10 Presented by:
11
12 KAZEROUNI LAW GROUP, APC
13

Attorneys for Plaintiff and Proposed
Classes

14
15
16
17
18
19

By s/ Abbas Kazerounian
Abbas Kazerounian (SBN 249203)
245 Fischer Avenue, Suite D-1
Costa Mesa, CA 92626-4539
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

20 LAW OFFICES OF TODD M.
21 FRIEDMAN

Attorneys for Plaintiff and Proposed
22 Classes
23
24
25
26
27

By s/ Todd M. Friedman
Todd M. Friedman (SBN 216752)
Nicholas J. Bontrager (SBN 252114)
369 South Doheny Drive, Suite 415
Beverly Hills, CA 90211
Telephone: [phone]
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 6
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1
2
3

Fax: [phone]
Email:
[e-mail]
[e-mail]

4 HYDE & SWIGART
5

Attorneys for Plaintiff and Proposed
Classes

6
7
8
9
10
11

By s/ Joshua B. Swigart
Joshua B. Swigart (SBN 225557)
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

12 DAVIS WRIGHT TREMAINE LLP
13 Attorneys for Apria Healthcare LLC

(formerly known as Apria Healthcare, Inc.),
14 Defendant
15
16
17
18
19
20
21
22
23

By: s/ Sean M. Sullivan
Sean M. Sullivan (SBN 229104)
865 S. Figueroa Street, Suite 2400
Los Angeles, California 90017-2566
Telephone: [phone]
Fax: [phone]
Kenneth E. Payson (Admitted Pro Hac
Vice)
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
Telephone: [phone]
Fax: [phone]

24
25
26
27

Ashley L. Watkins (Admitted Pro Hac
Vice)
1300 SW Fifth Avenue, Suite 2400
Portland, Oregon, 97201-5610
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 7
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1
2
3

Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Davis Wright Tremaine LLP
L AW O F FI CE S
Suite 2200  1201 Third Avenue

FINAL JUDGMENT — 8
DWT 26410227v1 0025959-000028

Seattle, Washington 98101-3045

[phone]  Fax: [phone]