Rodriguez v. Hayt, Hayt & Landau, P.L.

Filing 26

ORDER granting 17 Motion for Conditional Certification of Class and Prelminary Approval of Settlement. Signed by Magistrate Judge John J. O'Sullivan on 6/21/2013. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 12-CV-23848- O'SULLIVAN
[CONSENT)
LUIS RODRIGUEZ, on behalf of
himself and all other similarly situated
Plaintiff,
vs.
HAYT HAYT AND LANDAU, P.L.
Defendant(s)
ORDER CONDITIONALLY CERTIFYING CLASS
AND GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

Pursuant to the joint motion filed on April 5, 2013, the parties in this
class action have reached a proposed settlement and seek preliminary approval
of the proposed Class Action Settlement Agreement and the Notice of Class
Action Settlement. The motion came on for hearing on June 17, 2013 at 10:00
a.m. Plaintiff, individually and on behalf of all others similarly situated
(collectively "Plaintiff'), appeared by counsel Aaron D. Radbil.

Defendant

appeared by counsel Dana Michelle Stern. Having considered the Motion and
supporting papers, the agreement and the exhibits attached thereto, the Court
issues the following Order:
1.

This Order incorporates by reference the definitions in the Class

Action Settlement Agreement ("Agreement") and all terms defined therein shall
have the same meaning in this Order as set forth therein. The Agreement is

attached to Docket Entry 16 as Exhibit A, and 1s incorporated herein by
reference.
2.

The Court hereby preliminarily approves the Agreement and the

settlement embodied therein. The Court preliminarily finds that this case meets
the requirements for class certification under FED. R. CIV. P. 23.

The Court

further preliminarily finds that the Agreement appears to provide for a
settlement that could ultimately be given final approval by this Court. It
appears to the Court that the Agreement is fair, adequate and reasonable as to
all potential Class Members, when balanced against the probable outcome of
further litigation, particularly in light of the fact that Defendant has agreed to
pay to the Class 121% of the maximum statutory liability under the statute
which forms the basis of this action. The Court also notes that the claim of
Plaintiff and the Class is based upon an alleged violation that is not pervasive
or egregious enough to warrant the maximum statutory award, making the
settlement even more adequate. It further appears that as a result of speedy,
voluntary discovery counsel for the Parties at this time are reasonably able to
evaluate their respective positions. It further appears to the Court that
settlement at this time will avoid substantial additional costs to all Parties, as
well as the delay and risks that would be presented by further prosecution of
this Action. Additionally, it appears that the proposed settlement was reached
as a result of intensive, non-collusive, arms-length negotiations.
3.

A hearing ("Fairness Hearing") shall be held before this Court on

September 17, 2013, 2013 at 10:00 a.m. on the Fifth Floor of the United States

District Court for the Southern District of Florida, located at the C. Clyde
Atkins United States Courthouse, 301 North Miami Avenue, Miami, FL 33128,
to determine all necessary matters concerning the settlement, including:
whether the proposed settlement of the Action on the terms and conditions
provided should be finally approved by the Court as fair, adequate, and
reasonable to the Class Members; whether the case should be dismissed with
prejudice pursuant to the terms of the settlement; whether the Court should
finally approve a statutory damages and enhancement payment for the named
plaintiff; and the amount of attorney fees and costs to be awarded Class
Counsel.
4.

The Court hereby approves, as to form and content, the proposed

"Notice of Class Action" ("Notice") attached to Exhibit A to Docket Entry 16. The
Court finds that the distribution of the Notice substantially in the manner and
form set forth in the Agreement meets the requirements of due process under
the Constitution and FED. R. Crv. P. 23(e); and that such Notice is the best
practicable under the circumstances and shall constitute due and sufficient
notice to all persons entitled thereto. The Court further finds that the proposed
form of notice is adequate and will give all Class Members sufficient
information to enable them to make informed decisions as to the Class, the
right to object or opt out, and the proposed settlement and its terms.
5.

For

purposes

of

effectuating

this

settlement,

the

Court

preliminarily certifies a Settlement Class consisting of all individuals in the
State of Florida to whom, during the Class Period Defendant sent or caused to

be sent a form collection letter substantially in the form described in Paragraph
14 of Plaintiffs Complaint in this case. Excluded from the Class are:
a.

any person who is already subject to an existing release;

b.

any person who is deceased as of this date;

c.

any person who has been discharged in bankruptcy under Title 11
of the United States Code as of the date of this order; and

d.

any Class Member who timely mails a request for exclusion.

The Class Period runs from October 22, 2011 through June 17, 2013.
6.

For purposes of effectuating this settlement, the Court hereby

appoints Plaintiff Luis Rodriguez as the class representative for the settlement
Class, and the following attorneys are appointed as Class Counsel:
Alexander Daniel Weisberg
Weisberg & Meyers LLC
5722 S Flamingo Road, Suite 656
Cooper City, FL 33330
954-212-2184, x211
aweis berg@attorneysforconsumers. com
and
Aaron D. Radbil
Weisberg & Meyers, LLC
5025 N. Central Ave., #602
Phoenix, AZ 850 12
786-245-8622
arad bil@attorneysforconsumers. com
7.

The Class Notice shall be distributed to the Class as follows: On or

before August 1, 2013, Defendant or its designee will print, copy, and mail the
Class Notice to the Class Members at the most current address reflected in
Defendant's records, with a notation on the envelopes requesting address

correction. If any notice is returned with a new address, the notice will be remailed to the new address. As to any Class Member whose notice is returned
without a forwarding address Defendant or its designee shall run such Class
Member through the National Change of Address database to seek a good
address and they shall re-send the Notice to any Class Member for whom they
are able to obtain a new address as a result of such search. Defendant shall
use its best efforts to provide prompt re-sending of any returned notices.
However, Defendant and its attorneys shall not be responsible the failure of the
Postal Service to timely deliver or return a class notice. Defendant shall have
no obligation tore-send a notice that is not returned by the Postal Service until
after the date that is seven days prior to the Final Fairness Hearing.
8.

Any class member who desires to enter an appearance pursuant to

Rule 23{ c )(2)(B)(iv) must do so by August 29, 2013. Class Members who wish
to exclude themselves from (opt out of) the Class and the proposed Settlement
must mail a written request for exclusion to Class Counsel and Counsel for
Defendant postmarked no later than August 29, 2013, which is three (3) weeks
prior to the Final Fairness Hearing. In any such written request for exclusion,
the Class Member must set forth his or her full name, address, telephone
number, and Social Security number, together with a statement to the effect
that that he or she wishes to be excluded from or opt out of the Class.
9.

Any Class Member who submits a valid request for exclusion at

any time prior to the expiration of the opt-out period shall not be bound by the

terms of this Agreement and shall not receive any of the benefits of the
Settlement.
10.

No member of the Class, or any other person, shall be heard at the

Fairness Hearing in opposition to class certification, class settlement, Class
Counsel's proposed attorneys' fees and expenses or the proposed Class
Representative's award unless not later than August 29, 2013, which is three
(3) weeks prior to the Final Fairness Hearing, such Class Member or other
person files with the Clerk of the Court and serves upon Class Counsel and
Counsel for Defendant a written notice of intent to object to one or more of the
terms of this Agreement or the Final Order and Judgment.
11.

Any such notice of objections shall include:
(1)

a statement of each objection being made;

(2)

a detailed description of the facts underlying each objection;

(3)

a detailed description of the legal authorities underlying each
objection;

(4)

a statement of whether the objector intends to appear at the
Final Fairness Hearing;

(5)

a list of witnesses whom the objector may call by live
testimony, oral deposition testimony or affidavit during the
Final Fairness Hearing; and

(6)

a list of exhibits which the objector may offer during the
Final Fairness Hearing, along with copies of all of the

12.

exhibits.
Unless otherwise agreed by both Defendant and Class Counsel,

any Class Members or other persons who fail to properly or timely file their

objections with the Court, or fail to timely serve such objections on Class
Counsel and counsel for Defendant, shall not be heard during the Final
Fairness Hearing and the Court will not consider their objections.
13.

Until the Fairness Hearing described above, or further order of this

Court, all Class Members are hereby preliminarily enjoined and ordered not to
file, institute or prosecute any lawsuit or claim against Defendant or any of its
officers, directors, shareholders, members, or employees arising out of or
related to the same or similar circumstances, transactions or occurrences as
are alleged in this case, such as Defendant's use of the form letters that are at
issue in this case.
14.

This Order shall not be construed or deemed to be a finding by this

Court or evidence of a presumption, implication, concession, or admission by
Defendant concerning (1) any alleged liability, fault, or wrongdoing by
Defendant; (2) the appropriateness of any measure of alleged loss or damages;
or (3) the appropriateness of class certification for any purposes other than
Settlement. If the Settlement Agreement is terminated pursuant to its terms, or
if the Settlement is not approved or consummated for any reason whatsoever,
the Settlement and all proceedings had in connection therewith shall be
without prejudice to the status quo ante rights of the parties to this action.
IT IS SO ORDERED.
Dated:

\JJ.Jt

J.,(

' 2013.
JOHN J.
UNITED