Durham v. Continental

Filing 93

ORDER Granting 87 Joint Motion for Final Approval of Class Action Settlement. This action is hereby dismissed with prejudice. The Court retains jurisdiction over the enforcement of the settlement agreement. The pending 78 motion for summary judgment is denied as moot. Plaintiff shall have 30 days from the entry of this Order to file a motion for attorneys fees and costs. Signed by Judge Barry Ted Moskowitz on 6/2/11. (jer)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

SALLIE A. DURHAM, an individual on
behalf of herself and all others similarly
situated,

Case No. 07cv1763 BTM(WMc)
ORDER GRANTING JOINT MOTION
FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT

Plaintiff,

13
v.
14
15

CONTINENTAL CENTRAL CREDIT,
INC.,
Defendant.

16
17
18

The parties have filed a joint motion for final approval of class action settlement. On

19

June 1, 2011, the Court held a hearing on the motion. For the reasons set forth below, the

20

joint motion is GRANTED.

21
22

I. BACKGROUND

23

On September 7, 2007, Plaintiff Sallie A. Durham filed a class action complaint against

24

Continental Central Credit ("CCC"), asserting class claims under the Fair Debt Collection

25

Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Specifically, Plaintiff alleges that CCC

26

violated the FDCPA by sending Plaintiff and the other class members a letter in the form of

27

Exhibit B to the FAC (“Exhibit B letter”) within 30 days of sending a letter in the form of

28

Exhibit A to the FAC (“Exhibit A letter”).

1

07cv1763 BTM(WMc)

1

In an order filed on July 14, 2010, the Court granted Plaintiff’s motion for class

2

certification.

Pursuant to Rule 23(b)(3), the Court certified the “Overshadowing or

3

Contradicting Class” consisting of: (i) all natural persons with California addresses to whom

4

(ii) Defendant CCC sent a letter in the form of Exhibit B to the FAC (iii) within 30 days of

5

sending a letter in the form of Exhibit A to the FAC, as shown by the records of CCC (iv) on

6

or after September 7, 2006 (v) in an attempt to collect a debt incurred for personal, family,

7

or household purposes allegedly due for a nonprofit home owners or vacation owners

8

association fees (vi) which was not returned by the U.S. Postal Service.

9

On October 12, 2010, the parties entered into a Class Action Settlement Agreement.

10

On January 3, 2011, Magistrate Judge McCurine granted preliminary approval of the

11

class action settlement, approved the form and manner of notice to the class, and set

12

deadlines for the mailing of the notice to the class, the filing of any objections to the

13

settlement, and the submission of exclusion forms and claim forms.

14

On February 4, 2011, the Claims Administrator mailed the notice of settlement to the

15

97 class members. A total of 21 notices were returned by the post office as undeliverable.

16

No requests for exclusion or objections were received by the class administrator. No class

17

members appeared at the June 1, 2011 hearing on the motion for final approval of the

18

settlement.

19
20

II. DISCUSSION

21

The Court has reviewed the terms of the settlement and, as discussed below, finds

22

that the proposed settlement is fair, reasonable, and adequate. Therefore, the joint motion

23

for final approval of the settlement is granted.

24

A court may approve a settlement upon finding that it is fair, reasonable, and

25

adequate. Fed. R. Civ. P. 23(e)(2). In determining whether a proposed class action

26

settlement is fair, reasonable, and adequate, a court may consider some or all of the

27

following factors: (1) the strength of the plaintiff’s case; (2) the risk, expense, complexity and

28

likely duration of further litigation; (3) the risk of maintaining class action status throughout
2

07cv1763 BTM(WMc)

1

the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the

2

stage of the proceedings; (6) the experience and view of counsel; (7) the presence of a

3

governmental participant; and (8) the reaction of the class members to the proposed

4

settlement. Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998).

5

The material terms of the proposed settlement are as follows:

6

•

7
8

incentive award for a total of $4,000.00.
•

9
10

CCC must pay Ms. Durham $1,000 in statutory damages plus $3,000 as an

CCC must pay to the Class Members who did not exclude themselves from the
Class a pro-rata share of a $17,750 settlement fund.

•

From any settlement checks that are returned or remain uncashed within 120

11

days of this Order, CCC shall pay a cy pres award equally to National

12

Consumer Law Center and National Association of Consumer Advocates for

13

use in consumer representation and education funds.

14

•

Class Counsel shall file any motion for an award for their attorney’s fees, costs,

15

and expenses incurred in this action no later than thirty (30) days from the date

16

of this Order.

17

The class settlement fund is in the amount of $17,750, which equals the maximum

18

recovery under 15 U.S.C. § 1692k(a)(2)(B). Section 1692k(a)(2)(B) provides for recovery

19

in class actions of an amount not to exceed the lesser of $500,000 or 1 percent of the net

20

worth of the debt collector. CCC’s net worth is estimated at $ 1.75 million. Therefore, the

21

class would not obtain a more favorable recovery even if it prevailed at trial. Accordingly, the

22

Court finds that the amount of the class settlement fund is fair and reasonable.

23

The incentive award of $4,000 is also reasonable. As the sole named plaintiff, Ms.

24

Durham was required to devote time and effort to the case for the benefit of the class. The

25

incentive award is appropriate compensation for Ms. Durham’s participation in the litigation.

26

The class members were reasonably notified of the settlement as required by Fed. R.

27

Civ. P. 23(e)(1). No class member has objected to the settlement or sought to be excluded

28

from the class.
3

07cv1763 BTM(WMc)

1
2

The Court concludes that the proposed settlement is fair, reasonable and adequate
and grants final approval of the settlement.

3
4
5

III. CONCLUSION
For the reasons discussed above, the joint motion for final approval of class action

6

settlement [Doc. No. 87] is GRANTED.

This action is hereby DISMISSED WITH

7

PREJUDICE.

8

agreement. The Clerk shall enter judgment accordingly.

The Court retains jurisdiction over the enforcement of the settlement

9

The pending motion for summary judgment [Doc. No. 78] is DENIED AS MOOT.

10

Plaintiff shall have 30 days from the entry of this Order to file a motion for attorney’s fees and

11

costs. The Court sets the hearing on such motion for August 5, 2011 at 11:00 a.m. Unless

12

otherwise directed by the Court, there shall be no oral argument and no personal

13

appearances are necessary.

14

IT IS SO ORDERED.

15
DATED: June 2, 2011
16
17
18

Honorable Barry Ted Moskowitz
United States District Judge

19
20
21
22
23
24
25
26
27
28
4

07cv1763 BTM(WMc)