Lehigh Acres Lot Owners Association, Inc. v. Think Simplicity Inc. et al
Filing
25
ORDER granting 24 Joint Motion for Preliminary Approval of Settlement. Signed by Judge Roy B. Dalton, Jr. on 2/22/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LEHIGH ACRES LOT OWNERS
ASSOCIATION, INC.,
Plaintiff,
v.
Case No. 6:16-cv-933-Orl-37GJK
THINK SIMPLICITY INC.; and
ALEXANDER PEROVICH,
Defendants.
ORDER
This cause is before the Court on the parties’ Joint Motion for Preliminary Approval
of Settlement and Incorporated Memorandum of Law (Doc. 24), filed January 13, 2017. 1
After review and consideration of the settlement agreement (Doc. 24-1
(“Settlement Agreement”)), and in accordance with prevailing law, it is hereby
ORDERED AND ADJUDGED:
1.
The parties’ Joint Motion for Preliminary Approval of Settlement and
Incorporated Memorandum of Law (Doc. 24) is GRANTED.
2.
By stipulation of the parties, and pursuant to Federal Rules of Civil
Procedure 23(a) and 23(b)(3), the Court conditionally certifies the following
settlement class for settlement purposes only:
All natural persons and entities in the United States
who were sent a facsimile advertisement, by or on
behalf of Think Simplicity, Inc. and/or Alexander
Perovich, between April 30, 2015 and February 22,
2017, that advertised Think Simplicity, Inc.’s products
1
The Court adopts all defined terms as set forth in the parties’ proposed Settlement
Agreement. (Doc. 24-1.)
and/or services, where the advertisement failed to
contain opt-out language compliant with requirements
of the Telephone Consumer Protection Act of 1991
(“TCPA”) and/or its accompanying regulations
[(“Settlement Class”)].
3.
The Court finds that this conditional class certification is appropriate
because: (a) the Settlement Class is so numerous that joinder of all
members is impractical; (b) there are common questions of law and fact that
predominate over any questions affecting only individual class members;
(c) Plaintiff’s claims are typical of the claims of the class; (d) Plaintiff and its
counsel will fairly and adequately protect the interests of the Settlement
Class; and (e) a class action is the superior method for resolving this
controversy—(i) given the nature and small size of the class members’
individual claims; (ii) given the class members’ lack of interest in individually
controlling the prosecution of separate actions; and (iii) because resolution
on a class wide-basis will promote judicial economy and efficiency.
4.
The Court further finds that this conditional class certification is appropriate
pursuant to Federal Rule of Civil Procedure 23(b)(3), because questions of
law and/or fact common to members of the Settlement Class predominate
over any questions affecting only individual members, and a class action is
superior to other available methods for fairly and efficiently adjudicating this
controversy.
5.
The Court further finds that the settlement of this action, as embodied in the
terms of the Settlement Agreement, including all exhibits thereto, is
PRELIMINARILY APPROVED for the purposes of settlement, pursuant to
2
Federal Rule of Civil Procedure 23(e). The Court finds that the terms of the
Settlement Agreement were based on confirmatory discovery and the
product of extensive, arm’s length negotiations between experienced
counsel, and thus are fair, reasonable and adequate, and well within the
range of reasonableness for preliminary settlement approval.
6.
The Court APPOINTS Lehigh Acres Lot Owners Association, Inc.
(“Plaintiff”), as the “Class Representative” for the Settlement Class, and
appoints Plaintiff’s attorneys (Richard Bennett and Peter Bennett of Bennett
& Bennett, and Joshua A. Glickman and Shawn A. Heller of the Social
Justice Law Collective, PL) as “Class Counsel” for the Settlement Class.
7.
In
compliance
with
the
Class
Action
Fairness
Act
(“CAFA”),
28 U.S.C. § 1715, Defendants shall serve written notice of the proposed
Settlement Agreement on the U.S. Attorney General and the Attorney
General of Florida.
8.
The Settlement Agreement is incorporated by reference into this Order and
is hereby preliminarily adopted as an Order of this Court.
9.
The Settlement Agreement proposes notice to the Settlement Class in the
form of Exhibit A-2 to the Joint Motion (Doc. 24-1, pp. 18–21
(“Class Notice”)), and by facsimile transmission to the facsimile telephone
numbers of the Settlement Class members, as identified by the Hunter
Declaration (Exhibit B to the Joint Motion (Doc. 24-3)). The Parties further
agree that the Settlement Administrator shall send the Class Notice by first
class U.S. Mail to the mailing address on file with Class Counsel of any
3
Settlement Class member whose Class Notice was not successfully
transmitted after three attempts, as identified by the Hunter Declaration.
10.
The Court APPROVES the manner and substance of the Class Notice as
the best practicable notice under the circumstances and because it is
reasonably calculated to apprise Settlement Class members of the
pendency of this action and their right to object or to exclude themselves
from the Settlement Class. The Court further finds that the Class Notice is
reasonable, that it constitutes due, adequate and sufficient notice to all
persons entitled to receive notice, and that it satisfies the requirements of
due process and Federal Rule of Civil Procedure 23.
11.
The Court PRELIMINARILY APPOINTS Class-Settlement.com as the
Class Administrator, which shall provide notice and administer the
settlement in accordance with the terms and conditions of the Settlement
Agreement and this Order.
12.
The Parties are DIRECTED to provide the Class Notice to the Settlement
Class within fourteen calendar days following entry of this Order (“Notice
Deadline”), in the manner, form and substance as proposed by the Parties
in the Settlement Agreement.
13.
The Court hereby sets deadlines and dates for the acts and events set forth
in the Settlement Agreement and directs the Parties to incorporate the
deadlines and dates in the Class Notice:
a.
Settlement Class Members shall have forty-five calendar days
after the Notice Deadline (“Opt-Out Deadline”) to either file a claim
4
or opt out of the proposed settlement in accordance with the
procedures set forth in the Class Notice—Question 5, Part C, Part A,
and Proof of Claim Form;
b.
Settlement Class Members shall have sixty calendar days after the
Notice Deadline (“Objection Deadline”) to object to the proposed
settlement in accordance with the procedures set forth in the Class
Notice—Question 5, Part D; and
c.
Papers in support of final approval of the proposed settlement shall
be filed no later than twenty-one calendar days after the Objection
Deadline.
14.
A Final Approval Hearing identified in the Class Notice will be held before
the Undersigned on Friday, June 16, 2017, at 10:00 a.m., in Courtroom 4A
of the George C. Young Courthouse, 401 West Central Boulevard, Orlando,
Florida 32801 to address whether: (a) to finally certify the Settlement Class
under Rules 23(a) and 23(b)(3); (b) whether the proposed Settlement
should be finally approved as fair, reasonable, adequate, and in the best
interest of the Settlement Class; and (c) whether any application for an
award of attorneys’ fees, costs, and expenses should be approved.
15.
Any Settlement Class Member who does not file an objection by the
Objection Deadline or in the manner described in the Class Notice shall be
deemed to have waived such objection.
16.
Any persons who would otherwise be Settlement Class Members and who
do not notify the Settlement Administrator of their intent to exclude
5
themselves by the Opt-Out Deadline shall be deemed to have waived their
right to be excluded from the Settlement Class.
17.
In the event that a Judgment is not entered by the Court, the Effective Date
of the Settlement does not occur, or the Settlement 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 purpose 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 Settlement Agreement, exhibits, attachments, and all
negotiations and proceedings related thereto shall be deemed to be without
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 Settlement Agreement.
18.
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
Agreement.
DONE AND ORDERED in Chambers in Orlando, Florida, on February 22, 2017.
Copies:
6
Counsel of Record
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