Luxford et al v. Resurgent Capital Services, LP et al

Filing 50

ORDER GRANTING PRELIMINARY APPROVAL TO CLASS ACTION SETTLEMENT (granting 38 , 45 ). Final Approval Hearing set for 8/26/2011 09:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. Signed by Judge Jeremy Fogel on 4/22/2011. (jflc2, COURT STAFF) (Filed on 4/22/2011)

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**E-Filed 04/22/11**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TERESA A. LUXFORD and CARLOS H. PEREZ,
Plaintiffs,

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v.
RESURGENT CAPITAL SERVICES, LP;
ALEGIS GROUP, LLC; and LVNV FUNDING
LLC,

Case Number 5:09-CV-02809 JF (HRL)
ORDER GRANTING
PRELIMINARY APPROVAL TO
CLASS ACTION SETTLEMENT
[Re: Docket No. 38]

Defendants.

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Plaintiffs Teresa A. Luxford and Carlos H. Perez brought the instant action against

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Defendants Resurgent Capital Services ("Resurgent"), Alegis Group, LLC ("Alegis"), and LVNV

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Funding LLC ("LVNV") for alleged violations of the Federal Fair Debt Collection Practices Act

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("FDCPA"), 15 U.S.C. §§ 1692-1692p, and California's Rosenthal Fair Debt Collection Practices

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Act ("RFDCPA"), Cal. Civ. Code §§ 1788-1788.33. The parties move jointly for leave to file a

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First Amended Complaint, certification of a settlement class, appointment of class counsel and

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class representatives, preliminary approval of their proposed settlement, and approval of their

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proposed plan to provide notice to the class.

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On March 25, 2011, the Court requested that the parties submit additional information
Case No. 5:09-CV-02809 JF (HRL)
ORDER GRANTING PRELIMINARY APPROVAL TO SETTLEMENT
(JFEX1)

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regarding the qualifications of Plaintiffs’ counsel, the basis for the proposed incentive awards to

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the named Plaintiffs, Resurgent’s finances, and responsibility for costs of administration. The

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parties have complied with the Court’s request.

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Upon review and consideration of the parties’ joint motion, their proposed settlement

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agreement, and the additional information provided by the parties, it is HEREBY ORDERED,

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ADJUDGED, and DECREED as follows:

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1. The proposed settlement agreement, including its exhibits, is preliminarily approved
as fair, reasonable, and adequate.

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2. Plaintiffs shall have leave to file a First Amended Complaint in the form attached to

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the parties’ joint motion as Exhibit B. The First Amended Complaint is deemed filed as of the

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date of this order.

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3. For settlement purposes only, the Court conditionally certifies the following class: (i)

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all persons who were sent at an address in California, (ii) a letter from Defendants in the form of

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“Exhibit 1” or “Exhibit 2,” (iii) regarding a debt incurred for personal, family, or household

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purposes, (iv) which was not returned undelivered by the U.S. Postal Service, (v) during the one

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year period before the filing of this action through the date of certification.

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4. The Court conditionally finds, for settlement purposes only, that the instant action

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satisfies the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of

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Civil Procedure.

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5. The Court appoints Teresa A. Luxford and Carlos H. Perez as class representatives,
and O. Randolph Bragg and Fred W. Schwinn as class counsel.
6. The Court appoints Rosenthal & Company LLC as the claims administrator.
Defendants will bear all costs of administration.

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7. A final hearing will be held on August 26, 2011 at 9:00 A.M. to determine whether the

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settlement is fair, reasonable, and adequate. Papers in support of final approval of the settlement

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must be filed on or before August 12, 2011. Pursuant to Rule 54(d)(2), documents supporting

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the proposed award of attorneys’ fees, costs, and expenses must be filed with the Court within

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Case No. 5:09-CV-02809 JF (HRL)
ORDER GRANTING PRELIMINARY APPROVAL TO SETTLEMENT
(JFEX1)

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fourteen (14) days of the order granting final approval to the settlement. The final hearing may

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be postponed, adjourned, or continued by order of the Court without further notice to the class.

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8. On or before May 22, 2011, Defendants must complete dissemination to the class of

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the notice of the settlement agreement and the final hearing. The Court finds that the proposed

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notice is the best practicable form of notice under the circumstances and is reasonably calculated

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to appraise the class members of the pendency of this action, the terms of the settlement

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agreement, and their right to object to the settlement or to exclude themselves from the class.

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9. Class members who wish to participate in the action may do so by filing an appearance
by July 22, 2011.

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10. Class members who wish to be excluded from the class must send a written request

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for exclusion to the claims administrator. The written exclusion must be received by the claims

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administrator no later than July 22, 2011.

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11. Class members who do not exclude themselves from the class may object to the
settlement by filing a Notice of Intention to Appear and Object by July 22, 2011.
12. Pending final approval of the settlement, no class member may commence any action

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against any of the released parties in any court or tribunal based on the claims released in this

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action. This injunction will not apply to class members who timely excluded themselves from

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the settlement class.

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IT IS SO ORDERED.
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DATED: 04/22/11

__________________________________
JEREMY FOGEL
United States District Judge

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Case No. 5:09-CV-02809 JF (HRL)
ORDER GRANTING PRELIMINARY APPROVAL TO SETTLEMENT
(JFEX1)