Gellis v. Verizon Communications, Inc. et al

Filing 132

FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE. Signed by Judge JEFFREY S. WHITE on 11/16/12. (jjoS, COURT STAFF) (Filed on 11/16/2012)

Case3:07-cv-03679-JSW Document120-1 Filed10/12/12 Page1 of 8

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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JOSEPH RUWE and ELIZABETH ORLANDO, )
Individually and on behalf of all others similarly )
situated,
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Plaintiffs, )
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v.
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CELLCO PARTNERSHIP d/b/a VERIZON
)
)
WIRELESS,
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Defendant. )
)
)
)

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010073-11 557056 V1

No. 07-cv-03679 JSW
[PROPOSED] FINAL JUDGMENT AND
ORDER OF DISMISSAL WITH
PREJUDICE

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This matter came before the Court for hearing on November 16, 2012, pursuant to the

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Order Granting Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement

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(“Preliminary Approval Order”)1, on the application of the settling parties for approval of the

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settlement set forth in the Stipulation of Settlement Pursuant to Fed. R. Civ. P. 23 (“Settlement

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Agreement”)2. Due and adequate notice having been given of the settlement as required in said

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Order, and the Court having considered all papers filed and proceedings held herein, including the

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objection(s) to the proposed settlement or fee application, and otherwise being fully informed in

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the premises and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED

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AND DECREED that:

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1.

This Judgment incorporates by reference the definitions in the Settlement

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Agreement, and all terms used herein shall have the same meanings set forth in the Settlement

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Agreement.

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2.

to the Action, including all members of the Settlement Class.

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3.

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The Court appoints Plaintiffs Elizabeth Orlando and Joseph Ruwe as the named

plaintiffs for the Settlement Class.

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Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), the Court certifies

the proposed Settlement Class for the purposes of the settlement.

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This Court has jurisdiction over the subject matter of the Action and over all parties

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The Court designates Hagens Berman Sobol Shapiro LLP and Chavez & Gertler

LLP as Class Counsel for the Settlement Class.

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6.

This Court finds and concludes that the applicable requirements of Federal Rule of

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Civil Procedure 23(a) and 23(b)(2) have been satisfied with respect to the Settlement Class and

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settlement, and specifically, that: (a) the number of members of the Settlement Class are so

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numerous that joinder of all members thereof is impracticable; (b) there are questions of law and

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fact common to the Settlement Class; (c) named plaintiffs ’ claims are typical of the claims of the

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ECF No. 110, July 27, 2012.
ECF No. 104, May 29, 2012.

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Settlement Class they seek to represent; (d) named plaintiffs and Class Counsel have fairly and

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adequately represented and protected the interests of the Settlement Class and will continue to do

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so; and (e) Defendant has acted or refused to act on grounds that apply generally to the class.

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7.

The Action is permanently certified as a class action on behalf of the following

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persons (the “Settlement Class”):
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All California current and former Verizon Wireless retail wireless
customers who paid a $5 minimum late fee or paid a $15 reconnect
fee” during the Class Period (for the $5 late fee) or the Sub-Class
Period (for the $15 reconnect fee).

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The Class Period is defined to mean June 12, 2003, through April 26, 2012. The Sub-Class Period

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is defined to mean December 1, 2004, through April 26, 2012.
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This certification is for settlement purposes only and shall not constitute, nor be

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construed as, an admission on the part of the Defendant that this Action, or any other proposed or

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certified class action, is appropriate for any other purpose, including, without limitation, for trial

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class treatment.

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Except as to any individual claim of those persons who have validly and timely

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requested exclusion from the Classes, the Action and all claims contained therein, including all of

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the Released Claims, are dismissed with prejudice as to the named plaintiffs and the other members

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of the class, and as against each and all of the Released Persons. The parties are to bear their own

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costs, except as otherwise provided in the Settlement Agreement.

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10.

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, this Court hereby

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approves the settlement set forth in the Settlement Agreement and finds that said settlement is, in

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all respects, fair, reasonable and adequate to, and is in the best interests of, the named plaintiffs ,

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the Class and each of the class members. This Court further finds the settlement set forth in the

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Settlement Agreement is the result of arm’s-length negotiations between experienced counsel

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representing the interests of the named plaintiffs, the class members and the Defendant.

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Accordingly, the settlement embodied in the Settlement Agreement is hereby approved in all

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respects and shall be consummated in accordance with its terms and provisions. The settling parties

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are hereby directed to perform the terms of the Settlement Agreement.
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11.

Upon the Effective Date, the named plaintiffs and each of the class members shall

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be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever

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released, relinquished and discharged all Released Claims against the Released Parties.

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Upon the Effective Date, all class members and anyone claiming through or on

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behalf of any of them, will be forever barred and enjoined from commencing, instituting,

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prosecuting, or continuing to prosecute any action or other proceeding in any court of law or

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equity, arbitration tribunal, or administrative forum, asserting the Released Claims against any of

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the Released Parties.

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13.

Upon the Effective Date hereof, each of the Released Parties shall be deemed to

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have, and by operation of this Judgment shall have, fully, finally, and forever released, relinquished

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and discharged the named plaintiffs , each and all of the class members, and Class Counsel from all

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claims (including unknown claims), arising out of, relating to, or in connection with the institution,

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prosecution, assertion, settlement or resolution of the Action or the Released Claims.

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14.

The distribution of the notice as provided for in the Preliminary Approval Order

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constituted the best notice practicable under the circumstances, including individual notice to all

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members of the class who could be identified through reasonable effort. Said notice provided the

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best notice practicable under the circumstances of those proceedings and of the matters set forth

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therein, including the proposed settlement set forth in the Settlement Agreement, to all persons

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entitled to such notice, and said notice fully satisfied the requirements of Federal Rule of Civil

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Procedure 23, the requirements of due process, and any other applicable law.

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The Court hereby approves the Participation Awards in the amount of $2,500 to

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Plaintiff Elizabeth Orlando and $ 2,500 to Plaintiff Joseph Ruwe in accordance with the Settlement

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Agreement and finds that such awards are fair and reasonable.

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The Court hereby approves payment to the notice and claims administrator, Gilardi

& Co. LLC, in the amount of $1,640,792.
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The Court hereby awards to Class Counsel an award of (a) attorneys’ fees in the

amount of $2,500,000; and (b) reimbursement of expenses in the amount of $141,427.84. In

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making this award of attorneys’ fees and reimbursement of expenses, in the amounts described in

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this paragraph, the Court has considered and finds as follows:

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a)

Settlement Class, in addition to a charitable contribution to a cy pres recipient.

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The settlement has provided a significant amount of remedial relief to the

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Notice of the settlement was sent to over five million class members. Only

five objections were filed against the terms of the proposed settlement.

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c)

Class Counsel have conducted the Action and achieved the settlement with

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skill, perseverance and diligent advocacy on behalf of the Plaintiffs and the Settlement Class as a

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whole.

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d)

The Action involves complex factual and legal issues and, in the absence of

settlement, would involve further lengthy proceedings and uncertain resolution of such issues.

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e)

Had settlement not been achieved, there would remain a significant risk that

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the Settlement Class may have recovered less or nothing from Defendant, and that any recovery

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would have been significantly delayed.

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f)

The amount of attorneys’ fees and reimbursable expenses awarded to Class

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Counsel is fair and reasonable, given the number of attorney hours expended to achieve the

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settlement on behalf of Plaintiffs and the Settlement Class as a whole, and the estimated value of

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the settlement benefits obtained for the Settlement Class, and the amount awarded is consistent

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with awards for similar work in similar cases.

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The Court further finds that the designated cy pres recipient, The California Council

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on Economic Education, is appropriate given the circumstances of the case. Plaintiffs have filed

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under various California consumer statutes, including California Civil Code section 1671,

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Consumers Legal Remedies Act, California Civil Code §§ 1750 et seq., California’s Unfair

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Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq., and a common law cause of action for

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unjust enrichment, challenging defendants’ imposition of fees as disproportionately high charges to

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customers. Regardless of how either side would characterize the legality of these fees, a driving

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concern behind the litigation has been the high cost paid by consumers due to penalties in

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consumer contracts. The selected cy pres recipient’s mission is to advance the economic literacy of
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the people of California. The Court finds that the cy pres recipient has sufficient nexus to the

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claims in this case, and the objectives of the underlying statutes. Moreover, the cy pres recipient is

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focused exclusively on the people of California – the same geographic distribution as the

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Settlement Class in this case.

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The Court has considered the objections of five class members and finds them to be

without merit. and accepts their late-filing.

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20.

Neither the Settlement Agreement, nor any action taken pursuant to the settlement

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Agreement or to implement its terms shall in any event be: (1) construed as, offered or admitted in

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evidence as, received as and/or deemed to be, evidence for any purpose, other than such

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proceedings which may be necessary to consummate or enforce the terms of the Settlement, except

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that the Released Parties may file the Final Judgment in any action that may be brought against

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them in order to support a defense or counterclaim based on principles of res judicata, collateral

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estoppel, release, good faith settlement, judgment bar or reduction; or (2) disclosed or referred to

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for any purpose or offered or received in evidence, in any further proceeding in the Action, or any

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other civil, criminal or administrative action or proceeding against Defendant or any of the

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Released Parties.

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21.

Neither the Settlement Agreement, nor the settlement contained therein, nor any

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action taken pursuant to the Settlement Agreement or to implement its terms, is or may be

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construed as, or may be used as, an admission by or against the named plaintiffs that any of their

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claims in the action are or were without merit.

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The Court finds that during the course of the Action, the settling parties and their

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respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure

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11.

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In the event that the settlement does not become effective in accordance with the

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terms of the Settlement Agreement or the Effective Date does not occur, then this Judgment shall

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be rendered null and void to the extent provided by and in accordance with the Settlement

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Agreement and shall be vacated and, in such event, all orders entered and releases delivered in

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connection herewith shall be null and void to the extent provided by and in accordance with the

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Settlement Agreement.

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There is no just reason for delay in the entry of this Order and Final Judgment and

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immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(a) of the

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Federal Rules of Civil Procedure.
IT IS SO ORDERED.

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DATED: November 16, 2012

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THE HONORABLE JEFFREY S. WHITE
UNITED STATES DISTRICT COURT JUDGE

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Submitted by:
Dated: October 12, 2012
HAGENS BERMAN SOBOL SHAPIRO LLP
By

/s/ Jeff D. Friedman
JEFF D. FRIEDMAN

Shana E. Scarlett (217895)
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, California 94710
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Steve W. Berman (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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PROPOSED] FINAL JUDGMENT AND ORDER FOR
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010073-11 557056 V1

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