Cooper v. Nelnet, Inc.

Filing 85

ORDER granting in part and denying in part 78 Plaintiff's Motion and Memorandum in Support of Final Approval of Class Action Settlement Agreement. Signed by Judge Roy B. Dalton, Jr. on 8/4/2015. (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.

FINAL APPROVAL ORDER
This cause is before the Court on Plaintiff’s Motion and Memorandum in
Support of Final Approval of Class Action Settlement Agreement (Doc. 78), filed
June 29, 2015.
On February 26, 2015, the Court preliminarily approved the parties’ proposed
Class Action Settlement Agreement (Doc. 67-1 (“Agreement”)) and directed that
notice be given to the Settlement Class. (Doc. 72.) The parties represent that,
pursuant to the Preliminary Approval Order and the Notice Procedures set forth in
Article 10 of the Agreement, the Settlement Class was notified of the terms of the
proposed Settlement, of the right of Settlement Class Members to opt-out, and of the
right of Settlement Class Members to be heard at a Hearing on Final Approval to
determine, inter alia: (1) whether the terms and conditions of the Agreement are fair,
reasonable, and adequate for the release of the claims contemplated by the
Agreement; and (2) whether judgment should be entered dismissing this Action with
prejudice.

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On June 29, 2015, Plaintiff filed a Motion and Memorandum in Support of Final
Approval of Class Action Settlement Agreement (Doc. 78), and the Court held a
Hearing on Final Approval on July 13, 2015 (Doc. 79).
Having considered the papers submitted to the Court and all proceedings to
date (see Docs. 67, 71, 75-1, 77, 78, 79, 82), the Court FINDS:
1.

The capitalized terms used in this Judgment shall have the same
meaning as defined in the Agreement, except as may otherwise be
ordered.

2.

This Court has jurisdiction over the subject matter of this Action and over
all claims raised therein and all Parties thereto, including the Settlement
Class.

3.

For purposes of the Settlement and this Judgment, the Court hereby
CERTIFIES the following Settlement Class:
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
February 26, 2015, where Defendant did not have
express consent to call said cellular telephone
number.
The Settlement Class, which will be bound by this judgment, shall
include all Non-Excluded Class Members.

4.

The Notice Procedures, set forth in Article 10 of the Agreement and
effectuated pursuant to the Preliminary Approval of Settlement and
Notice Order, was the best notice practicable under the circumstances;
provided due and sufficient notice to the Settlement Class of the
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pendency of the Action, certification of the Settlement Class for
settlement purposes only, the existence and terms of the Agreement,
and the Hearing on Final Approval; and satisfied the requirements of the
Federal Rules of Civil Procedure, the United States Constitution, and
other applicable law.
5.

No members of the Settlement Class objected to the Agreement.

6.

The Agreement is, in all respects, fair, reasonable, and adequate, and
is in the best interests of the Settlement Class.

Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.

Plaintiff’s Motion and Memorandum in Support of Final Approval of Class
Action Settlement Agreement (Doc. 78) is GRANTED IN PART and
DENIED IN PART.
a. The Motion is DENIED insofar as it requests attorney’s fees for Class
Counsel in the amount of $1,500,000.00. The Court AWARDS to
Class Counsel attorney fees and litigations expenses in the amount
of $1,250,000.00, which this Court finds to be fair and reasonable in
light of the time, expense, and complexity of this litigation. 1
b. In all other respects, the Motion is GRANTED.

2.

The Agreement (Doc. 78-1) is APPROVED.

3.

All claims against Nelnet, Inc. are DISMISSED WITH PREJUDICE.

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The Court’s reasons for awarding this amount, to which Class Counsel does not
object (see Doc. 82), are detailed in its July 31, 2015 Order (Doc 81).
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4.

The Parties are DIRECTED to effectuate the remaining terms of the
Agreement. The Agreement and every term and provision thereof shall
be deemed incorporated herein as if explicitly set forth and shall have
the full force of an Order of this Court.

5.

All persons who have not made their objections to the Settlement in the
manner provided in the Agreement are deemed to have waived any
objections by appeal, collateral attack, or otherwise.

6.

Within the time period set forth in the Agreement, the cash distributions
provided for in the Agreement shall be paid to the Settlement Class
Members submitting valid Claim Forms, pursuant to the terms and
conditions of the Agreement.

7.

Upon the Effective Date, Non-Excluded Class Members shall, by
operation of this Judgment, have fully, finally, and forever released,
relinquished, and discharged Defendant and its Subsidiaries from the
Released Claims as set forth in the Agreement, regardless of whether
any such Non-Excluded Class Member executed and delivered a Claim
Form or receives any payment pursuant to the Settlement.

8.

As set forth in Article 7 of the Agreement, all Non-Excluded Class
Members are hereby permanently barred and enjoined from filing,
commencing, prosecuting, maintaining, intervening in, participating in,
conducting, or continuing, either directly or in any other capacity, any
action or proceeding in any court, agency, arbitration, tribunal, or
jurisdiction, asserting any claims released pursuant to the Agreement,

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or seeking an award of fees and costs of any kind or nature whatsoever
and pursuant to any authority or theory whatsoever, relating to or arising
from the Action and/or as a result of or in addition to those provided by
the Agreement.
9.

The Judgment, the Agreement, the Settlement which it reflects and all
acts, statements, documents, or proceedings relating to the Settlement
are not, and shall not be construed as, or used as an admission by or
against Defendant or its Subsidiaries of any fault, wrongdoing, or liability
on the part of Defendant or its Subsidiaries.

10.

No finding of fact or conclusion of law was made in the Action that
Defendant engaged in any wrongful conduct of any kind whatsoever.

11.

The Court GRANTS Class Counsel’s application for an Incentive Award
for James David Cooper, Jr. in the amount of $25,000.00.

These

amounts are to be paid out the amount available for the payment of the
Settlement Costs, in accordance with the Agreement.
12.

Except as otherwise provided in this Judgment, the Parties SHALL bear
their own costs and attorney’s fees.

13.

The Court RESERVES exclusive and continuing jurisdiction over the
implementation

of

the

Settlement,

including

enforcement

and

administration of the Agreement.
14.

The Clerk is DIRECTED to terminate all pending motions and deadlines
and to close the case.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 4, 2015.

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Copies:
Counsel of Record

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