Cooper v. Nelnet, Inc.
Filing
72
ORDER granting 67 Motion for Preliminary Approval of Settlement. Signed by Judge Roy B. Dalton, Jr. on 2/26/2015. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES DAVID COOPER, JR.,
Plaintiff,
v.
Case No. 6:14-cv-314-Orl-37DAB
NELNET, INC.,
Defendant.
PRELIMINARY APPROVAL ORDER
This cause is before the Court on the parties’ Joint Motion for Preliminary Approval
of Settlement and Notice Order (Doc. 67), filed December 3, 2014. In light of the parties’
agreement and the record to date, 1 it is hereby ORDERED AND ADJUDGED:
1.
Joint Motion for Preliminary Approval of Settlement and Notice Order
(Doc. 67) is GRANTED.
2.
The Court preliminarily approves the Agreement (Doc. 67-1) as fair,
reasonable, and adequate to the Settlement Class, as falling within the
range of possible final approval, and as meriting notice of the Settlement to
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Upon initial review of the parties’ Joint Motion for Preliminary Approval of
Settlement and Notice Order (Doc. 67), the Court was unable to determine if the terms of
the proposed settlement were fair, reasonable, or adequate. (Doc. 70.) Accordingly, it
ordered the parties to submit additional briefing and materials in support of their proposed
settlement. (See id.) The parties’ Supplemental Memorandum for Preliminary Approval of
Settlement and Notice Order (Doc. 71) sufficiently addressed the Court’s concerns.
persons in the Settlement Class for their consideration and a hearing on the
approval of the Settlement.
3.
Solely for purposes of settlement, the following Settlement Class is
provisionally certified pursuant to Fed. R. Civ. P. 23(b)(2):
a.
All persons in the United States to whose cellular telephone
Defendant placed a non-emergency telephone call or text message
using an automatic telephone dialing system or an artificial or
prerecorded voice from February 21, 2010 to the date of this
Preliminary Notice and Approval Order, where Defendant did not
have express consent to call said cellular telephone number.
4.
Based on the parties’ stipulations, and for settlement purposes only:
a.
The above-described Settlement Class is so numerous that joinder
of all members is impracticable;
b.
There are questions of law or fact common to the Settlement Class;
c.
The claims of the Class Representative are typical of the claims of
the Settlement Class;
d.
The Class Representative will fairly and adequately protect the
interests of the Settlement Class;
e. The questions of fact or law common to the members of the
Settlement Class predominate over the questions affecting only
individual members; and
f.
Certification of the Settlement Class is superior to other available
methods for the fair and efficient adjudication of the controversy.
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5.
The Court finds that it has personal jurisdiction over all Settlement Class
Members, including the absent Settlement Class Members.
6.
The named Plaintiff, James David Cooper, Jr., shall be the Class
Representative of the Settlement Class. The Court preliminarily finds that
he will fairly and adequately represent and protect the interests of the
absent Settlement Class Members.
7.
The Court approves the law firms of Law Office of Scott D. Owens, Esq. and
Keogh Law, Ltd. as settlement Class Counsel. The Court preliminarily finds
that they are competent, capable of exercising all responsibilities as Class
Counsel, and will fairly and adequately represent and protect the interests
of the absent Settlement Class Members.
8.
The Court approves Epiq Systems to serve as the Notice and Claims
Administrator in this Action.
9.
A Hearing on Final Approval shall be held before the undersigned on
Monday, July 13, 2015, at 1:30 p.m., to address: (a) whether the proposed
Settlement should be finally approved as fair, reasonable, and adequate
and whether the Judgment should be entered; and (b) whether the
Attorney’s Fees, Litigation Expenses and Incentive Award Application
should be approved. Papers in support of final approval of the Settlement
and Attorney’s Fees, Litigation Expenses and Incentive Award Application
shall be filed with the Court fourteen (14) days prior to the Hearing on Final
Approval. The Hearing on Final Approval may be postponed, adjourned, or
continued by order of the Court without further notice to the Settlement
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Class. After the Hearing on Final Approval, the Court may enter a Judgment
in accordance with the Settlement Agreement that will adjudicate the rights
of all Settlement Class Members with respect to the Released Claims being
settled.
10.
The Court approves, as to form and content, the Notice Procedures as set
forth in Article 10 of the Agreement, including the use of a Claim Form,
Postcard Notice, Website Notice, and Publication Notice (if required)
substantially similar to the forms attached as Exhibits A, F, and E to the
Settlement Agreement, respectively. Postcard Notice will be based upon
reverse-look ups using the cellular telephone numbers of potential
Settlement Class Members provided by Defendant. The Postcard Notice
will be sent to Settlement Class Members by first-class U.S. mail via
postcards to any and all reasonably identifiable Settlement Class Members.
All Postcard Notices shall be mailed within thirty-three (33) business days
of the date of entry of this Preliminary Approval of Settlement and Notice
Order. All notice must be completed within forty-four (44) days after the
Postcard Notice is mailed.
11.
Settlement Class Members will have until seventy-five (75) days after the
Postcard Notice is mailed to submit a Valid Claim Form.
12.
The Administrative Costs shall be paid from the amount available for the
payment of Settlement Costs, as provided for in the Agreement.
13.
The Notice Procedures, as directed in this Order and as set forth in
Article 10 of the Agreement, constitute the best notice practicable under the
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unique circumstances of this case and are reasonably calculated to apprise
the Settlement Class Members of the pendency of this Action and of their
right to object to the Settlement or exclude themselves from the Settlement
Class. The Court further finds that the Notice Procedures are reasonable,
that they constitute due, adequate and sufficient notice to all persons
entitled to receive such notice, and that they meet the requirements of due
process and of Federal Rule of Civil Procedure 23.
14.
Any Settlement Class Member who desires to be excluded from the
Settlement Class, and therefore not be bound by the terms of the Settlement
Agreement, must submit to the Notice and Claims Administrator, pursuant
to the instructions and requirements set forth in paragraph 11.2 of the
Agreement and notice documents, a timely and valid written request for
exclusion postmarked or received no later than sixty (60) days after the
Notice and Claims Administrator mails the Postcard Notice.
15.
As provided in paragraph 11.2 of the Agreement, each request for exclusion
must be sent to the Notice and Claims Administrator, which shall state the
Settlement Class Member’s name, address, cellular telephone number
called by Defendant, and current telephone number if different from the
number called by Defendant and specifically request exclusion from the
Settlement. A request to be excluded that does not include all of the
foregoing information, that is sent to an address other than that designated
in the notice documents, or that is not postmarked within the time specified
may be invalid.
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16.
Any Settlement Class Member who elects to be excluded shall not be
entitled to receive any of the benefits of the Settlement, shall not be bound
by the release of any claims pursuant to the Settlement Agreement, and
shall not be entitled to object to the Settlement or appear at the Hearing on
Final Approval.
17.
Any Settlement Class Member who does not submit a valid and timely
request for exclusion may object to the proposed Settlement by filing a
Notice of Objection. To be valid, the objection must either be filed through
the Court’s CM/ECF system or sent via mail to the Clerk of the Court and
sent to Class Counsel, Defendant’s Counsel, and the Notice and Claims
Administrator on or before the Objection Deadline, which is sixty (6) days
after the Postcard Notice is mailed. As set forth in paragraph 12.3 of the
Agreement, the Notice of Objection must: (i) be written; (ii) state the name,
address, and telephone number of the objecting Non-Excluded Class
Member; (iii) provide satisfactory proof of his or her membership in the
Settlement Class, including identifying the number called by Defendant; and
(iv) set forth the grounds of objection. No Non-Excluded Class Member shall
be heard at the Hearing on Final Approval unless such person has complied
with the requirements set forth in paragraphs 12.1–12.4 of the Agreement,
and no objection or basis of objection shall be considered at the Hearing on
Final Approval, or provide a basis for alteration or modification of the
Settlement, the Agreement, the Class Counsel Legal Fees, the Litigation
Expenses, Incentive Award, the Postcard Notice, the Long Form Notice, the
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Publication Notice, the Notice and Claims Procedures, the proposed
Judgment, or any other term of the Settlement or Agreement, unless such
objection or basis of objection was set forth in a timely Notice of Objection
filed and delivered in accordance with the requirements and procedures of
those paragraphs.
18.
For any objection filed, the Clerk of the Court is ordered to redact any social
security number, street address, telephone number, and last name, except
the first letter of the last name, in order to protect the objector’s privacy. The
objector’s first name and city, state, and zip code, as well as the objection,
will not be redacted.
19.
Parties may file responses to objections up until seven (7) days prior to the
Hearing on Final Approval.
20.
All proceedings in this Action are stayed until further Order of the Court,
except as may be necessary to implement the terms of the Settlement.
21.
In the event that a Judgment is not entered by the Court, or the Effective
Date of the Settlement does not occur, or the Agreement otherwise
terminates according to its terms, this Order and all orders entered in
connection therewith shall become null and void, shall be of no further force
and effect, and shall not be used or referred to for any purposes
whatsoever, including without limitation for any evidentiary purpose
(including but not limited to class certification), in this Action or any other
Action. In such event, the Agreement, exhibits, attachments, and all
negotiations and proceedings related thereto shall be deemed to be without
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prejudice to the rights of any and all of the parties, who shall be restored to
their respective positions as of the date and time immediately preceding the
execution of the Agreement.
22.
The Court may, for good cause, extend all of the deadlines set forth in this
Order without further notice to the Settlement Class.
DONE AND ORDERED in Chambers in Orlando, Florida, on February 26, 2015.
Copies:
Counsel of Record
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