Elliott v. LVNV Funding, LLC
Filing
35
MEMORANDUM OPINION AND ORDER Signed by Judge Rebecca Grady Jennings on 8/23/2019 granting 30 Motion to Certify Class. The Revised Settlement Agreement and the settlement it incorporates, are preliminarily approved as fair, reasonable and adequate. The Action is PRELIMINARILY CERTIFIED as a class action for settlement purposes only, pursuant to Fed. R. Civ. P. 23(a) and (b)(3). For settlement purposes only, the Court CONDITIONALLY CERTIFIES the classes of persons described in the Revised Settl ement Agreement defined as: Class I: Prejudgment Court Costs Class, and Class II: Judgment Lien Filing Fee and Garnishment Fee Class. Plaintiff Anthony Elliott is DESIGNATED as representative of the conditionally certified Classes. James Hays Lawson, of Lawson at Law, PLLC, and James McKenzie, of James R. McKenzie Attorney, PLLC, are APPOINTED as Class Counsel. Fairness hearing set for 1/28/2020 at 9:30 a.m. in the Louisville Courtroom before Judge Rebecca Grady Jennings. Defendants Class List t o counsel due 9/23/2019. Class Notice Mailing initiated by 10/7/2019. Class Notice Mailing completed by 10/30/2019. Filing and Serving Requests for Exclusion due by 10/16/2019. Motion for Final Approval and other papers in support of Settlement due by 12/24/2019. Objections due by 1/8/2020. The parties shall comply as set forth in Order. SEE ORDER FOR SPECIFIC DEADLINES AND INSTRUCTIONS. cc: Counsel(RLJ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
ANTHONY ELLIOTT
Plaintiff
v.
Civil Action No. 3:16-cv-00675-RGJ
LVNV FUNDING, LLC
Defendant
* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Anthony Elliott, individually and on behalf of all others similarly situated
(“Plaintiff”), brings this action against Defendant LVNV Funding, LLC (“LVNV”) seeking relief
for alleged violations of the Fair Debt Collection Practices Act (the “FDCPA”). [DE 1]. Plaintiff
and LVNV (the “Settling Parties”) now file a Renewed Joint Motion for Certification of Settlement
Class and Preliminary Approval of Class Action Settlement Agreement (the “Renewed Motion”).
[DE 30]. The matter is ripe. For the reasons below, the Renewed Motion is GRANTED.
I.
A.
BACKGROUND
Factual and Procedural History
LVNV is “engaged in the business of purchasing debts from creditors and collecting these
debts.” [DE 1 at 2]. Mr. Elliott filed a Class Action Complaint on behalf of himself and two
classes, arguing that LVNV has a “pattern and practice” of collecting “court costs, processing fees,
and other collection expenses pursuant to judgments it obtained against . . . Kentucky
consumers . . . that it ha[s] no right to collect under Kentucky law.” Id. at 5. Mr. Elliott seeks
relief related to LVNV’s alleged violations of the FDCPA as they apply to two classes of people:
(1) those people against whom LVNV had illegally sought to collect court costs, and (2) those
people against whom LVNV had illegally tried to collect garnishment fees. Id. at 5–6.
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After negotiating at arm’s length for more than five months, Mr. Elliott and LVNV filed a
Joint Motion for Certification of Settlement Class and Preliminary Approval of Class Action
Settlement Agreement (the “Joint Motion”), requesting that the Court certify a “Prejudgment Court
Costs Class” and a “Judgment Lien Filing Fee and Garnishment Fee Class.” [DE 22-2 at 107];
[DE 22 at 67–69]. As an exhibit, the Settling Parties attached a proposed class action settlement
agreement. [DE 22-1]. The Settling Parties also attached a proposed notice of class action Lawsuit
and Proposed Settlement. [DE 22-5]. The Court denied the Joint Motion without prejudice,
finding that the proposed settlement agreement was not fair, reasonable, and adequate and that the
proposed notice was inadequate. [DE 29 at 143–45].
The Settling Parties filed the Renewed Motion, [DE 30], attaching a Revised Class Action
Settlement Agreement (the “Revised Settlement Agreement”), [DE 30-1], and Revised Notice of
Class Action Lawsuit and Proposed Settlement (the “Revised Notice”), [DE 30-2].
B.
The Revised Settlement Agreement
1.
Class Membership
The Revised Settlement Agreement would create two classes: “Class I: Prejudgment Court
Costs Class” and “Class II: Judgment Lien Filing Fee and Garnishment Fee Class” (the
“Prejudgment Class” and “Post-Judgment Class,” respectively). [DE 30-1 at 153–55]. Class I
encompasses those against whom LVNV sought to collect “prejudgment court costs . . . without
filing a bill of costs itemizing the prejudgment court costs.” [Id. at 154]. Class II encompasses
those against whom LVNV tried to collect a “post-judgment filing fee paid by LVNV to file a
‘Notice of Judgment Lien Upon Real Estate’” and/or a “post-judgment garnishment fee.” [Id. at
154–55].
2
2.
Class Benefits
The settlement is calculated to refund class members for the amount sought by LVNV:
The settlement agreement refunds all allegedly improper amounts that
LVNV sought or collected from the class members. Additionally, LVNV will
provide class members an additional account credit.
Thus, pursuant to the Settlement Agreement, no class member will have
paid more than Plaintiff alleges they should have paid, and all class members will
receive cash or credit against their judgments. The settlement essentially removes
the amounts Plaintiff claims were improperly added to the judgment balances and
makes the class members whole.
[DE 22 at 78].
More specifically, members of both classes would both receive an amount equal to the
“prejudgment court costs and/or post-judgment fees” LVNV has collected, or sought to collect,
from them, either in the form of a credit to their account with LVNV, or, if they no longer have an
account with LVNV, in cash. [DE 30-1 at 158–59]. Both classes would also receive $75.00 in
statutory damages. Id.
3.
Waiver
In a section entitled “Release,” the Revised Settlement Agreement provides that in
exchange for the above-detailed benefits, members of both Classes would “forever
release . . . LVNV and its Related Parties1 from any and all claims and causes of action, whether
known or unknown, that were made or could have been made in the Action arising out of or related
LVNV’s “Related Parties” include LVNV’s “predecessors in interest, agents, employees, representatives,
divisions, affiliates, and any other person or entity sharing common control or ownership with [LVNV] and
each of [LVNV’s] present or former employees, officers, directors, shareholders, parents, members,
partners, corporations, principals, agents, representatives, insurers, attorneys (including collection attorneys
named or not named as co-defendants in any lawsuit against LVNV, related to work said collection
attorneys performed to collect the Judgments of any Class Member), assignors, assigns, predecessors,
predecessors-in-interest, successors, successors-in-interest, consultants, vendors, and collection agencies.”
[Id. at 88–89].
1
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in any way to LVNV’s efforts to collect on the Judgments, including but not limited to those claims
arising under the FDCPA or any state statute or rule of procedure (‘Released Claims’).” [Id. at
164–65].
The Revised Notice contains a section entitled “What rights are you giving up in this
settlement?” [DE 30-2 at 177]. This section states that unless the recipient excludes himself from
the settlement, he will “give up [his] right to sue or continue a lawsuit against LVNV over the
released claims.” [Id.]. The Revised Notice defines the phrase “released claims” in the same
manner as the Revised Settlement Agreement.2 [Id.].
II.
DISCUSSION
Plaintiff and LVNV have filed a Renewed Motion. Before the Court can preliminarily
approve the Revised Settlement Agreement, it must preliminarily certify the class under 23(a) and
(b) of the Federal Rules of Civil Procedure, appoint class counsel, and approve the class
representative. Afterward, it must determine whether the Revised Settlement Agreement is fair,
adequate, and reasonable. UAW v. GMC, 497 F.3d 615, 631 (6th Cir. 2007).
A.
Class Certification
1.
Standard
District courts have “broad discretion in certifying class actions,” but “must exercise that
discretion within the framework of Rule 23.” Coleman v. General Motors Acceptance Corp., 296
F.3d 443, 446 (6th Cir. 2002) (citing Cross v. Nat’l Trust Life Ins. Co., 553 F.2d 1026, 1029 (6th
Cir. 1977)). “The party seeking the class certification bears the burden of proof.” In re Am. Med.
Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Rule 23(a) imposes requirements of numerosity,
commonality, typicality, and adequacy of representation, and a district court must conduct “a
2
The original proposed notice did not define the phrase “released claims.” [See DE 29 at 140].
4
rigorous analysis” to ensure that “the prerequisites of Rule23(a) have been satisfied.” Fed. R. Civ.
P. 23(a); Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). Certification is inappropriate if a
class fails to satisfy any of the four Rule 23(a) prerequisites. Ball v. Union Carbide Corp., 385
F.3d 713, 727 (6th Cir. 2004). The Rule 23 prerequisites are not relaxed in the settlement context,
and courts should apply the Rule 23 analysis independent of a “fairness” analysis. Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 620–22 (1997).
Together with the Rule 23(a)
prerequisites, the moving parties “must demonstrate that the class fits under one of the three
subdivisions of Rule 23(b).” Fed. R. Civ. P. 23(b); Coleman, 296 F.3d at 446.
In ruling on a motion for class certification, courts do not examine the merits of the
plaintiffs’ underlying claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). “A
Rule 23 determination is wholly procedural and has nothing to do with whether a plaintiff will
ultimately prevail on the substantive merits of its claim.” Little Caesar Enter., Inc. v. Smith, 172
F.R.D. 236, 241 (E.D. Mich. 1997). Courts also assume that the substantive allegations of the
complaint are true and that cognizable claims are stated. See Eisen, 417 U.S. at 178. “Nonetheless,
the Court must undertake an analysis of the issues and the nature of required proof at trial to
determine whether the matters in dispute and the nature of plaintiffs’ proofs are principally
individual in nature or are susceptible of common proof equally applicable to all class members.”
Little Caesar, 172 F.R.D. at 241. “[W]hen a court is in doubt as to whether to certify a class action,
it should err in favor of allowing a class.” Id. (citing Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d
5
Cir. 1985); Horton v. Goose Creek Independent School Dist., 690 F.2d 470, 487 (5th Cir. 1982);
Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968)).
2.
Analysis
a.
Numerosity
The first requirement for class certification is that “the class be so numerous that joinder
of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “There is no strict numerical test for
determining impracticability of joinder.” In re Am. Med. Sys. Inc., 75 F.3d at 1079. “There is no
automatic cut-off point at which the number of plaintiffs makes joinder impractical, thereby
making a class-action suit the only viable alternative. However, sheer number of potential litigants
in a class, especially if it is more than several hundred, can be the only factor needed to satisfy
Rule 23(a)(1).” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004) (internal
citations omitted).
The Settling Parties have represented that “the proposed settlement classes collectively
includes [sic] over 400 distinct class members. [DE 22 at 74]. Given this, the Court finds that the
numerosity requirement of Rule 23(a)(1) is met. See e.g., Taber v. McCracken Cty., No. 5:06-CV144-R, 2008 WL 5101684, at *3 (W.D. Ky. Nov. 26, 2008) (finding the numerosity prerequisite
met when the putative class numbered 54).
b.
Commonality
The second Rule 23(a) prerequisite for class certification is that “there are questions of law
or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Although Rule 23(a)(2) speaks of
‘questions’ in the plural . . . there need only be one question common to the class.” Sprague v.
Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). “It is not every common question that will
suffice, however; at a sufficiently abstract level of generalization, almost any set of claims can be
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said to display commonality.” Id. What the Court must look for “is a common issue the resolution
of which will advance the litigation.” Id.
Both putative classes share a common question of law: LVNV’s liability to the members
of Class I would turn on whether seeking to collect prejudgment court costs without filing a bill of
costs itemizing the prejudgment court costs in Kentucky violates the FDCPA, while LVNV’s
liability to the members of Class II would turn on whether collecting a post-judgment filing fee to
file a Notice of Judgment Lien Upon Real Estate or a post-judgment garnishment fee in Kentucky
violates the FDCPA. The commonality requirement set forth in Rule 23(a)(2) is therefore met.
c.
Typicality
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical
of the claims or defenses of the class.” This typicality prerequisite “determines whether a sufficient
relationship exists between the injury to the named plaintiff and the conduct affecting the class, so
that the court may properly attribute a collective nature to the challenged conduct.” Sprague, 133
F.3d at 399 (citing In re Am. Med. Sys., 75 F.3d at 1082). “A claim is typical if ‘it arises from the
same event or practice or course of conduct that gives rise to the claims of other class members,
and if his or her claims are based on the same legal theory.’” Beattie v. CenturyTel, Inc., 511 F.3d
554, 561 (6th Cir. 2007) (quoting In re Am. Med. Sys., 75 F.3d at 1082). “[F]or the district court
to conclude that the typicality requirement is satisfied, ‘a representative’s claim need not always
involve the same facts or law, provided there is a common element of fact or law.’” Id. (quoting
Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n.31 (6th Cir. 1976)). On the other hand, a claim,
7
if proven, is not typical if it would only prove the named plaintiff’s claim. See Sprague, 133 F.3d
at 399.
The claims and injuries alleged by Mr. Elliott typify those experienced by the settlement
classes. If LVNV illegally sought prejudgment court costs and post-judgment lien filing fees and
garnishment fees, Mr. Elliott and the members of the settlement classes suffered nearly identical
injuries—the only substantial difference would be the difference in amounts sought by LVNV, if
any. The typicality requirement set forth in Rule 23(a)(3) is therefore met.
d.
Adequacy of Representation
The fourth requirement for class certification is that “the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “There are two criteria
for determining whether the representation of the class will be adequate: 1) The representative
must have common interests with unnamed members of the class, and 2) it must appear that the
representatives will vigorously prosecute the interests of the class through qualified counsel.”
Senter, 532 F.2d at 524–25. “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts
of interest between the named parties and the class they seek to represent. A class representative
must be part of the class and possess the same interest and suffer the same injury as the class
members.” Amchem, 521 U.S. at 625–26; see also Cross, 553 F.2d at 1031 (Rule 23(a)(4) tests
“the experience and ability of counsel for the plaintiffs and whether there is any antagonism
between the interests of the plaintiffs and other members of the class they seek to represent.”).
The injuries alleged by Mr. Elliott are substantially the same as the injuries accruing to the
classes—Mr. Elliott alleges that LVNV sought to collect prejudgment court costs from him
without filing a bill of costs itemizing the prejudgment court costs, making him a member of Class
I, and that LVNV tried to collect a post-judgment garnishment fee from him, making him a member
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of Class II. [DE 1 at 3–4]. For these reasons, Mr. Elliott, as the named representative, shares
common interests with the unnamed members of the settlement classes and can be appointed as
class representative.
Under the second prong of Rule 23(a)(4), the Court must also look to the adequacy of the
representative plaintiff’s representation “to determine whether class counsel are qualified,
experienced and generally able to conduct the litigation.” Stout v. J.D. Byrider, 228 F.3d 709, 717
(6th Cir. 2000). A plaintiff’s choice of counsel “should negatively impact our determination of
adequacy at this early stage only if the proposed lead counsel is ‘so deficient as to demonstrate
that it will not fairly and adequately represent the interests of the class.’” In re Vicuron Pharms.,
Inc. Sec. Litig., 225 F.R.D. 508, 511–12 (E.D. Pa. 2004), (quoting In re Cendant Corp. Litig., 264
F.3d 201, 266 (3d Cir. 2001)). And while experience prosecuting class action suits is a factor to
be weighed when determining the adequacy of class counsel, it is not dispositive. See Wells v.
Allstate Ins. Co., 210 F.R.D. 1, 11 (D.D.C. 2002) (finding that class counsel “meet the basic
standard for adequacy of counsel” despite having “no prior experience in prosecuting class action
lawsuits”).
Counsel for Mr. Elliott have litigated over three-hundred consumer-rights cases, many
which have involved the FDCPA, including nine cases involving the alleged violations of the
FDCPA at issue here. [DE 22-2 at 107, 109]. While counsel for Mr. Elliot do not appear to be
experienced with class-action suits specifically,3 they appear qualified to represent the interests
In the original motion for class certification, the parties assert that Mr. Elliott’s counsel “have previously
represented consumer classes.” [DE 22 at 76]. In the attached Declaration of James McKenzie and James
Hays Lawson, however, Mr. Elliott’s counsel detail their experience at length and mention no experience
with class-actions. [DE 22-2 at 106–11].
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adequately of the settlement classes. The adequacy requirement set forth in Rule 23(a)(4) is
therefore met.
e.
Rule 23(b)(3)
Along with satisfying the requirements of Rule 23(a), “parties seeking class certification
must show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem, 521 U.S. at
614. The Settling Parties assert that the proposed class satisfies the requirements of Rule 23(b)(3).
After satisfying Rule 23(a), a class action may be maintained if “the court finds that
questions of law or fact common to the class members predominate over any questions affecting
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The Rule 23(b)(3)
predominance requirement parallels the Rule 23(a)(2) commonality requirement in “that both
require that common questions exist, but subdivision (b)(3) contains the more stringent
requirement that common issues ‘predominate’ over individual issues.” In re Am. Med. Sys., Inc.,
75 F.3d at 1084. A district court must determine whether the questions common to the class are
“at the heart of the litigation.” Powers v. Hamilton Cty. Pub. Def. Com’n, 501 F.3d 592, 619 (6th
Cir. 2007). “The predominance requirement is satisfied unless it is clear that individual issues will
overwhelm the common questions and render the class action valueless.” In re Cardizem CD
Antitrust Litig., 200 F.R.D. 297, 307 (E.D. Mich. 2001).
“Common questions need only
predominate: they need not be dispositive of the litigation.” Id.
Here, a class action is the superior method of adjudicating the controversy. Common
questions of law and fact predominate over any potential individual issues. The issues here turn
on whether LVNV violated Kentucky consumer-protection laws, and thereby violated the FDCPA.
Whether LVNV violated these laws by seeking to collect prejudgment court costs and post10
judgment fees is a question that is common to all class members. The proof that Mr. Elliott would
have to produce in order to substantiate his allegations would be similar in kind to the proof
required of the other class members—that LVNV sought to collect the costs and fees in question.
Additionally, class action represents a superior means of fairly and efficiently adjudicating
this case. The amount of damages incurred by individual class members likely cannot justify
pursuing individual actions, making a class action a valuable tool for all class members. See Pfaff
v. Whole Foods Mkt. Grp. Inc., No. 1:09–CV–02954, 2010 WL 3834240, at *7 (N.D. Ohio Sept.
29, 2010) (“[T]he most compelling rationale for finding superiority in a class action is the existence
of a ‘negative value suit,’ . . . one in which the costs of enforcement in an individual action would
exceed the expected individual recovery.”). The Court thus finds that the common questions in
this case are not overshadowed by the individual issues, and that certification of a settlement class
is appropriate. The commonality and superiority requirements of Rule 23(b)(3) are satisfied.
Having considered the requirements of Rule 23(a) and Rule 23(b)(3) and finding them to
be satisfied, the proposed class defined in the settlement agreement is certified for settlement
purposes.
B.
Appointment of Class Counsel
1.
Standard
“[A] court that certifies a class must appoint class counsel.” Fed. R. Civ. P. 23(g). In
making that determination, the Court must consider:
(i) the work counsel has done in identifying or investigating potential claims in the
action; (ii) counsel’s experience in handling class actions, other complex litigation,
and the types of claims asserted in the action; (iii) counsel’s knowledge of the
11
applicable law; and (iv) the resources that counsel will commit to representing the
class.
Fed. R. Civ. P. 23(g)(a).
2.
Analysis
Here, counsel for Mr. Elliott has moved for appointment as class counsel. In support of
this motion, counsel represents that they have “conducted an investigation as to the factual and
legal merits of the claims of Mr. Elliott and the putative class under the FDCPA,” which “included
written discovery in the instant class action.” [DE 22-2 at 106–07]. Counsel have engaged in
settlement discussions spanning more than five months, the result of which is the Revised
Settlement Agreement currently pending. [Id. at 107]. As noted above, while counsel does not
appear to have extensive experience with class-actions, counsel have litigated over three-hundred
consumer-rights cases, including nine cases involving the alleged violations of the FDCPA here.
[Id. at 107, 109]. Finally, proposed class counsel have shown a willingness to commit substantial
time and resources to representing the claims of the class. Having considered the motion for
appointment of class counsel, , James Hays Lawson, of Lawson at Law, PLLC, and James
McKenzie, of James R. McKenzie Attorney, PLLC, are designated as counsel for the certified
settlement class.
C.
Preliminary Approval of The Revised Settlement Agreement
In its previous Order [DE 29], the Court found that the original proposed settlement was
not fair, reasonable, and adequate because it provided members of Class II benefits commiserate
with the prejudgment costs LVNV had sought to collect despite Class II being defined as
individuals against whom LVNV had sought to collect post-judgment fees. [DE 29 at 144]. The
Court also found that the original proposed notice was insufficient for failing to notify class
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members of the waiver provision in the original proposed settlement. [Id. at 144–45]. These
deficiencies have now been remedied. [See DE 30-1 at 158–59; DE 30-2 at 177].
Thus, the Revised Settlement Agreement is fair, reasonable, and adequate. Under the
agreement, LVNV has agreed to return to the class members all prejudgment court costs and postjudgment fees LVNV allegedly sought in violation of Kentucky law, as well as $75.00 in statutory
damages.
1.
Standard
Class action suits may be settled only with the court’s approval. Fed. R. Civ. P. 23(e).
Approval of a class action settlement involves two-stages: 1) “The judge reviews the proposal
preliminarily to determine whether it is sufficient to warrant public notice and a hearing”; and 2)
“If so, the final decision on approval is made after the hearing.” Ann. Manual Complex Lit.
(Fourth) § 13.14 (2019); see also Thacker v. Chesapeake Appalachia, L.L.C., 259 F.R.D. 262, 270
(E.D. Ky. 2009) (referencing Tenn. Ass'n of Health Maint. Orgs., Inc. v. Grier, 262 F.3d 559, 56566 (6th Cir. 2001)). “At the stage of preliminary approval, the questions are simpler, and the court
is not expected to, and probably should not, engage in analysis as rigorous as is appropriate for
final approval.” Spine & Sports Chiropractic, Inc. v. ZirMed, Inc., No. 3:13-CV-00489, 2015 WL
1976398, at *1 (W.D. Ky. May 4, 2015) (quoting Ann. Manual Complex Lit. § 21.662 (4th ed.)).
Courts apply a degree of scrutiny to proposed settlement agreements sufficient to avoid “rubberstamp[ing]” a proposed settlement agreement, while still being “mindful of the substantial judicial
processes that remain to test the assumptions and representations upon which the [proposed
settlement agreement] are premised.” In re Inter-Op Hip Liab. Litig., 204 F.R.D. 330, 338 (N.D.
Ohio 2001).
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To approve a proposed settlement, the court must determine whether it is “fair, reasonable, and
adequate.” Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 1093 (6th Cir. 2016); Fed. R. Civ. P.
23(e)(2). Rule 23(e) provides the court with factors to consider when making this determination.
The Advisory Committee, in amending Rule 23(e) in 2018, did not intend to displace factors
developed by the circuit courts in deciding whether to approve a proposed settlement agreement,
but rather to “focus the court . . . on the core concerns . . . that should guide” the court’s
determination. Federal R. Civ. P. 23(e) advisory committee’s note to 2018 amendment. This
Court thus considers both the Rule 23(e) factors and the factors set forth by the Sixth Circuit. Peck
v. Air Evac EMS, Inc., No. CV 5: 18-615-DCR, 2019 WL 3219150, at *5 (E.D. Ky. July 17, 2019).
2.
Analysis
Because the parties' showing satisfies the Rule 23(e)(2) and Sixth Circuit factors, the Court
will likely be able to approve the Revised Settlement Agreement as “fair, reasonable, and
adequate.”
a. Rule 23(e)(2)
Under the Rule 23(e)(2) factors, settlement is “fair, reasonable, and adequate” if:
(A) the class representatives and class counsel have adequately
represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing
relief to the class, including the method of processing classmember claims;
(iii) the terms of any proposed award of attorney’s fees,
including timing of payment; and
(iv) any agreement required to be identified under Rule
23(e)(3); and
(D) the proposal treats class members equitably relative to each
other.
Fed. R. Civ. P. 23(e)(2).
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First, the class representative and class counsel have adequately represented the class by
reaching an arm’s-length settlement agreement with LVNV which fully refunds the members of
the class. Based on class counsels’ prior litigation of similar FDCPA actions, they had adequate
information from which to evaluate the strength of their case and to negotiate. [DE 22-2 at 107];
See FED. R. CIV. P. 23(e)(2) Advisory Committee’s Note (2018 Amendment) (When considering
the adequacy of representation, “the nature and amount of discovery in this or other cases, or the
actual outcomes of other cases, may indicate whether counsel negotiating on behalf of the class
had an adequate information base. The pendency of other litigation about the same general subject
on behalf of class members may also be pertinent”). Under the Revised Settlement Agreement,
the class is fully refunded. An agreement, such as this, which substantially favors the class,
warrants finding that the class was adequately represented.
Second, the settlement agreement was negotiated at arm’s length for more than five
months. [DE 22-2 at 107]. Negotiations required “numerous phone conferences, correspondence,
and drafts of proposed class action settlement agreement (sic).” Id. The Revised Settlement
Agreement was only reached after “revisions, re-writes, and negotiations between respective
counsel over a period of several weeks.” Id.; See Thacker v. Chesapeake Appalachia, L.L.C., 695
F. Supp. 2d 521, 531-532 (E.D. Ky. 2010) (finding that the settlement was fair, adequate, and
reasonable when the “parties engaged in extensive, arms-length negotiations for over four months,
which . . . allowed the parties to fully explore their respective factual and legal positions”).
Third, the relief provided is adequate. Mr. Elliott alleges that LVNV sought prejudgment
court costs and post-judgment fees from the class members in violation of Kentucky law. The
settlement is adequate because the recompense provided by the Revised Settlement Agreement is
calculated to fully refund class members for the amount sought by LVNV:
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The settlement agreement refunds all allegedly improper amounts that LVNV
sought or collected from the class members. Additionally, LVNV will provide class
members an additional account credit.
Thus, pursuant to the Settlement Agreement, no class member will have paid more
than Plaintiff alleges they should have paid, and all class members will receive cash
or credit against their judgments. The settlement essentially removes the amounts
Plaintiff claims were improperly added to the judgment balances and makes the
class members whole.”
[DE 22 at 78].
In total, LVNV has agreed to pay $93,000 by check to class members with closed accounts
and to credit $488,610 to class members with open accounts. [DE 30-1 at 159]. There is no
evidence or concern about collusion here because the class members, after being fully refunded,
will receive an additional $75.00 from LVNV.
Class counsel requests, LVNV agrees, and the Court preliminarily approves attorneys’ fees
and costs totaling $80,000.4 [DE 30-1 at 166]. The parties settled on $80,000 for fees and costs
after considering “the novelty of the ‘bill of cost’ claim alleged in this . . . case,” which class
counsel was the “first to identify, research, develop, and litigate as an alleged violation of the
FDCPA”; “the resulting change of practice of consumer collection practice in Kentucky”; “the
complexity and scope of the class action”; “the economy and efficiency of judicial resources
achieved”; and “the opportunity costs” for class counsel of litigating this as a class action as
opposed to a series of separate, individual claims. [DE 22-2 at 108]. Attorneys’ fees were “not
addressed until agreement was reached as to the relief provided to the Class Members.” Id.
Attorneys’ fees and costs will be “paid in addition to, and not out of, the amounts paid to the class
representative and class members.” [DE 22 at 70].
4
Class counsels’ only costs so far have been $407.78 in filing fees and service costs. [DE 22-2 at 108].
16
The benchmark for the preliminary approval of awards of attorneys' fees is 25% of the
common fund. See, e.g., Fournier v. PFS Invs., Inc., 997 F.Supp. 828, 832 (E.D.Mich.1998) (“The
‘benchmark’ percentage for this standard has been 25% [of the common fund], with the ordinary
range for attorney's fees between 20–30%.”). Of course, this case does not involve the payment
of attorneys’ fees and expenses out of the common fund. Rather, fees and expenses are paid from
a separate fund. The Court notes, however, that if the requested award of fees and expenses was
paid out of the common fund, this would only represent 13% of the common fund, well below the
benchmark that is often approved.
The parties explicitly disclaim any side agreements: “This Settlement Agreement
constitutes the entire agreement between the Parties with regard to the subject matter contained
herein, and all prior negotiations and understandings between the Parties shall be deemed merged
into this Settlement Agreement.” [DE 30-1 at 170-171].
Fourth, the settlement treats class members equitably. While the class members may
receive differing amounts, the amount that each class member will receive is based on the amount
LVNV improperly assessed him or her. Thus, the class members are treated equitably relative to
each other. See In re Skechers Toning Shoe Prod. Liab. Litig., No. 3:11-MD-2308-TBR, 2012 WL
3312668, at *9 (W.D. Ky. Aug. 13, 2012) (“The terms of the settlement are fair to the class
members because members are treated equally with differentiation only based on the price of the
Skechers product they purchased”).
b. Sixth Circuit’s Factors.
The Sixth Circuit has set forth factors to help courts determine whether a settlement is “fair,
reasonable, and adequate” for purposes of preliminary approval: “(1) the risk of fraud or collusion;
(2) the complexity, expense and likely duration of the litigation; (3) the amount of discovery
17
engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class
counsel and class representatives; (6) the reaction of absent class members; and (7) the public
interest.” Pelzer v. Vassalle, 655 F. App'x 352, 359 (6th Cir. 2016) (citing Int'l Union, United
Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 641 (6th
Cir. 2007).
First, “Courts presume the absence of fraud or collusion in class action settlements unless
there is evidence to the contrary.” Thacker v. Chesapeake Appalachia, L.L.C., 695 F. Supp. 2d
521 (E.D. Ky. 2010) (quoting Leonhardt v. ArvinMeritor, Inc., 581 F. Supp. 2d 818, 838 (E.D.
Mich. 2008)). “When a settlement is the result of extensive negotiations by experienced counsel,
the Court should presume it is fair.” In re Skechers Toning Shoe Prod. Liab. Litig., No. 3:11-MD2308-TBR, 2012 WL 3312668, at *9 (W.D. Ky. Aug. 13, 2012) (internal quotation marks omitted)
(quoting In re Inter–Op Hip Prosthesis Liab. Litig., 204 F.R.D. 330, 351 (N.D.Ohio 2001). In this
case, where the class members are fully refunded and the parties negotiated at arm’s length for
more than five months, there is no reason to think that the parties colluded.
Second, the parties, in reaching the Revised Settlement Agreement, considered the
“complexity, expense and likely duration of the litigation.”
Plaintiff believes the Revised
Settlement Agreement provides prompt and effective relief to the class and avoids the “uncertainty
inherent in establishing liability of LVNV . . . [and] . . . in the various theories of damages, even
if Mr. Elliot prevailed in establishing the liability of LVNV.” [DE 30-1 at 152]. LVNV, likewise,
believes the settlement resolves “Mr. Elliott’s claims and the Class Members’ claims, as well as
the underlying matters without undue expense to the Parties, while reducing the burdens and
uncertainties associated with protracted litigation of these claims.” Id. This matter has been
pending since 2016and both parties have already spent considerable time and expense.
18
Third, the parties engaged in sufficient discovery.
LVNV provided class counsel
“information pertinent to certification, including disclosures concerning class size, scope and
damages. Through the “disclosures made by LVNV . . . [class counsel] . . . acquired sufficient
knowledge and information to assess the merits of the claims, potential defenses and potential
settlement.” [DE 22-2 at 107]. The discovery most pertinent to the value of the settlement is that
related to class size, scope, and damages, which the parties have already undertaken.
Fourth, “the most important of the factors to be considered in reviewing a settlement is the
probability of success on the merits. The likelihood of success, in turn, provides a gauge from
which the benefits of the settlement must be measured.” Poplar Creek Dev. Co. v. Chesapeake
Appalachia, L.L.C., 636 F.3d 235, 245 (6th Cir. 2011) (quoting In re Gen. Tire & Rubber Co. Sec.
Litig., 726 F.2d 1075, 1086 (6th Cir. 1984)). LVNV’s decision to refund fully the class suggests
that LVNV weighed the risks and costs of going to trial and believed Plaintiff had a strong chance
of prevailing on the merits. When, as here, success on the merits is likely, a settlement that fully
refunds the class is appropriate.
Fifth, class counsel has spent “hundreds of hours in CLE’s, conferences . . . [and] . . .
FDCPA case review[s],” has previously litigated more than 300 consumer rights cases, including
FDCPA claims, and has shaped the “recent development of Kentucky consumer law” by
“establishing substantive case law precedent.” [DE 22-2 at 109-110]. Courts in the Sixth Circuit
defer to the informed and reasoned judgment of class counsel and their weighing of the risks and
benefits of protracted litigation. Thacker v. Chesapeake, 695 F. Supp. 2d at 521; UAW v. Ford
Motor Co., No. 07-CV-14845, 2008 WL 4104329 at *26 (E.D. Mich. Aug. 29, 2008); Dick v.
Sprint Commc'ns Co. L.P., 297 F.R.D. 283, 297 (W.D. Ky. 2014); In re Cardizem CD Antitrust
Litig., 218 F.R.D. 508, 525 (E.D. Mich. 2003); Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir.
19
1983). Based on their extensive experience and expertise litigating consumer cases and FDCPA
claims, class counsel believes that the settlement is in the “best interest of the Plaintiff.” [DE 222 at 111]. Having found no collusion or reason to suspect fraud in the settlement, the Court defers
to class counsels’ reasoned assessment as to the benefit of settlement.
Sixth, because the Court is reviewing this issue at the preliminary, pre-notice stage, the
reaction of absent class members is impossible to know. That said, the settlement will fully refund
the class members, and therefore possible most class members will not opt-out or object to a
settlement which does so.
Finally, the Court finds that settlement serves the public interest. “[T]here is a strong public
interest in encouraging settlement of complex litigation and class action suits because they are
‘notoriously difficult and unpredictable’ and settlement conserves judicial resources.” In re
Cardizem, 218 F.R.D. at 530 (quoting Granada Inv., Inc. v. DWG Corp., 962 F.2d 1203, 1205
(6th Cir.1992)). There is no basis for not adhering to that policy here, especially when the
settlement makes the class whole.
D.
The Proposed Settlement’s Notice Materials Satisfy the Requirements of Rule 23
Because this Court has granted preliminary approval, it “must direct notice in a reasonable
manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). The
Court must direct notice under Rule 23(c)(2)(B), which requires that the notice must include in
plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an
attorney if the member so desires;
(v) that the court will exclude from the class any member
who requests exclusion;
(vi) the time and manner for requesting exclusion; and
20
(vii) the binding effect of a class judgment on members
under Rule 23(c)(3).
“Notice of the terms of the settlement must be provided to the class in plain, easily
understood language.” Walter v. Hughes Commc’ns, Inc., No. 09–2136 SC, 2011 WL 2650711,
at *12 (N.D. Cal. July 6, 2011) (internal quotation marks omitted). “The notice provided to class
members must include enough information to allow the class members to make an informed choice
of whether to approve or disapprove the settlement.” Bowling v. Pfizer, Inc., 143 F.R.D. 141, 160
(S.D. Ohio 1992) (citing Weinberger v. Kendrick, 698 F.2d 61, 71 (2d Cir. 1982)).
Here, the Revised Notice provides information about the action:
This Lawsuit was filed against Defendant LVNV Funding, LLC (“LVNV”),
claiming that it violated state and federal law by attempting to collect court costs to
which it was not entitled by attempting to collect judgment lien filing fees to which
it was not entitled; and by attempting to collect garnishment filing fees to which it
was not entitled. Plaintiff asserts that such acts renders LVNV liable under
Kentucky state law and the Fair Debt Collection Practices Act (the “FDCPA”).
LVNV denies Plaintiff’s allegations and asserts that any alleged error was a bona
fide error that occurred notwithstanding the maintenance of procedures reasonably
adapted to avoid such errors. In addition, LVNV asserts a number of defenses under
state and federal law, including, but not limited to, that certain claims are barred by
the Rooker-Feldman doctrine, collateral estoppel, that Plaintiff cannot state a claim
under Kentucky law or the FDCPA, and that Plaintiff cannot state a claim for
violation of a state civil rule of procedure.
[DE 30-2 at 173].
The Revised Notice defines the certified class and explains class claims, issues, and
defenses. Id. at 173-177.
The Revised Notice, however, does not clearly inform class members that they may enter
an appearance through an attorney. In the section entitled “What if you want to object to the
settlement?”, the Revised Notice describes the process for objecting to the settlement and notes
that the objection or letter must state “the names, addresses, and phone numbers of all witnesses
whom you or your attorney intends to call at the Final Fairness Hearing.” Id. at 179. In the section
21
entitled, “Entering an appearance,” the Revised Notice mentions 23(c)(2)(B)(iv), but does not fully
explain what that rule means. Id. at 178. Based on this incomplete information, class members
would not know that they may enter an appearance through an attorney. Although the Revised
Notice fails to inform class members that they may enter an appearance through an attorney, the
parties’ failure to include this provision is not fatal to the Revised Notice, as the Court will allow
the parties to amend it to include it.
The Revised Notice explains the class members’ options, the manner for requesting
exclusion, and the timeframe in which they must do it. Id. at 178-179.
Finally, it notes that if an individual chooses to do nothing, he or she is bound by the terms
of the settlement. Id. at 179
The Court finds that the Revised Notice, with the revisions regarding appearance of counsel
as described above, is reasonably clear and conforms to the requirements of Rule 23(c).
III.
CONCLUSION
For these reasons, and being otherwise sufficiently advised, the Court ORDERS that the
Renewed Joint Motion for Certification of Settlement Class and Preliminary Approval of Class
Action Settlement Agreement, [DE 30], is GRANTED.
IT IF FURTHER ORDERED that:
(1)
The Revised Settlement Agreement and the settlement it incorporates, are
preliminarily approved as fair, reasonable and adequate.
(2)
The Action is PRELIMINARILY CERTIFIED as a class action for settlement
purposes only, pursuant to Fed. R. Civ. P. 23(a) and (b)(3).
(3)
For settlement purposes only, the Court CONDITIONALLY CERTIFIES
the classes of persons described in the Revised Settlement Agreement and
22
defined as:
(a)
Class I: “Prejudgment Court Costs Class”
All consumers against whom LVNV or its respective predecessors in interest,
agents, employees, attorneys, or representatives (collectively, “LVNV”), filed a
lawsuit in Kentucky, obtained a judgment against the consumer, and attempted to
collect or did collect via a post-judgment garnishment between October 27, 2015,
and the date the Court signs the order preliminarily approving the Revised
Settlement Agreement, prejudgment court costs from the consumer without filing
a bill of costs itemizing the prejudgment court costs LVNV attempted to recover,
or actually recovered. Members of Class I include consumers against whom
LVNV actually collected prejudgment court costs without filing a bill of costs
itemizing the costs recovered from the consumer and those consumers whom
LVNV attempted to, but did not collect prejudgment court costs without filing a
bill of costs itemizing the costs sought to be recovered from the consumer.
(b)
Class II: “Judgment Lien Filing Fee and
Garnishment Fee Class”
All consumers against whom LVNV or its respective predecessors in interest,
agents, employees, attorneys, or representatives (collectively, “LVNV”), filed a
lawsuit in Kentucky, obtained a judgment against the consumer, and attempted to
collect or did collect via a post-judgment garnishment between October 27, 2015,
and the date the Court signs the order preliminarily approving the Revised
Settlement Agreement, a post-judgment filing fee paid by LVNV to file a “Notice
of Judgment Lien Upon Real Estate” pursuant to a judgment entered against the
consumer. Members of Class II include consumers against whom LVNV actually
collected a post-judgment filing fee paid by LVNV to file a “Notice of Judgment
Lien Upon Real Estate” pursuant to a judgment entered against the consumer and
those consumers against whom LVNV attempted to, but did not collect a postjudgment filing fee paid by LVNV to file a “Notice of Judgment Lien Upon Real
Estate” pursuant to a judgment entered against the consumer. Members of Class
II also include all consumers against whom LVNV filed a lawsuit in Kentucky,
obtained a judgment against the consumer, and attempted to collect or did collect
via a post- judgment garnishment between October 27, 2015, and the date the Court
signs the order preliminarily approving the Revised Settlement Agreement, a postjudgment garnishment fee paid by LVNV to either a garnishee or a clerk of court
to file a garnishment to enforce a judgment entered against a consumer. This
includes consumers against whom LVNV actually collected a post- judgment
garnishment fee paid by LVNV to file a garnishment to enforce a judgment entered
against the consumer and those consumers against whom LVNV attempted to, but
did not collect a post-judgment garnishment fee paid by LVNV to file a
garnishment to enforce a judgment entered against the consumer.
23
(4)
A “Settlement Class Member” includes any person falling within the definition of any
one or more of the two Settlement Classes and if such person filed a petition in
bankruptcy after the issuance of a Statutory Notice, the bankruptcy trustee for such
person.
(5)
Plaintiff Anthony Elliott is DESIGNATED as representative of the conditionally
certified Classes. As discussed above, the Court preliminarily finds that he is
similarly situated to absent Class Members and therefore typical of both Classes, and
that he will be an adequate Class Representative.
(6)
James Hays Lawson, of Lawson at Law, PLLC, and James McKenzie, of James R.
McKenzie Attorney, PLLC, are APPOINTED as Class Counsel.
(7)
A Fairness Hearing shall be held on January 28, 2020 at 9:30 AM, at the United
States District Court for the Western District of Kentucky, 601 West Broadway,
Louisville, Kentucky 40202–2227, to determine, among other things:
(a)
whether the Action should be finally certified as a class action for settlement
purposes pursuant to Fed. R. Civ. P. 23(a), and (b)(3);
(b)
whether the settlement of the Action should be approved as fair, reasonable and
adequate, and finally approved pursuant to Fed. R. Civ. P. 23(e);
(c)
whether the Action should be dismissed with prejudice pursuant to the terms of the
Revised Settlement Agreement;
(d)
whether Class Members should be bound by the release set forth in the
Revised Settlement Agreement;
(e)
whether the application of Class Counsel for an award of Attorneys’ Fees and
Expenses should be approved pursuant to Fed. R. Civ. P. 23(h); and
24
(f)
whether the application of the named Plaintiff for an incentive award should
be approved.
The submissions of the Parties in support of the settlement, including Plaintiff’s
Counsels’ application for Attorneys’ Fees and Expenses and incentive awards, shall
be filed with the Court no later than thirty-five (35) days prior to the Fairness
Hearing and may be supplemented up to seven (7) days prior to the Fairness
Hearing.
(8)
The Fairness Hearing may be postponed, adjourned, transferred, or continued by
order of the Court without further notice to the Settlement Classes except to those
Class Members who file timely objections to the Settlement. After the Fairness
Hearing, the Court may enter a Settlement Approval Order and Final Judgment in
accordance with the Revised Settlement Agreement that will adjudicate the rights
of all Class Members.
(9)
In consultation with and with the approval of Plaintiff, LVNV is authorized to
establish the means necessary to administer the proposed settlement and implement
the claim process, in accordance with the terms of the Revised Settlement
Agreement.
(10)
LVNV shall provide the Class List to Class Counsel within thirty (30) days from
the date of the entry of this Order.
(11)
The Revised Notice and the notice methodology described in the Revised
Settlement Agreement are CONDITIONALLY APPROVED in accordance with
the Court’s analysis conducted above.
25
(a)
Beginning not later than forty-five (45) days from the date of entry of this
Order, and to be substantially completed not later than ninety (90) days
before the Fairness Hearing, LVNV shall cause to be mailed to each Class
Member the Revised Notice by first class mail, postage prepaid, addressed
to his or her last known address as indicated in LVNV’s records. Each
mailed Notice shall be sent with a request for a forwarding address.
(b)
The distribution of the Revised Notice shall otherwise comply with Fed. R.
Civ. P. 23 and any other applicable statute, law, or rule, including, but not
limited to, the Due Process Clause of the United States Constitution.
(c)
In the event that a mailed notice is returned undeliverable and a forwarding
address is provided, LVNV shall forward any such returned notice to the
address provided within five (5) business days.
(12)
The Court, in accordance with its above-stated conclusions, finds that the form,
content and method of giving notice to the Class as described above:
(a)
will constitute the best practicable notice;
(b)
is reasonably calculated, under the circumstances, to apprise the Class
Members of the pendency of the Action, the terms of the proposed
settlement, and their rights under the proposed settlement, including, but not
limited to, their right to object to or exclude themselves from the proposed
settlement and other rights under the terms of the Revised Settlement
Agreement;
(c)
are reasonable and constitute due, adequate, and sufficient notice to all Class
Members and other persons entitled to receive notice; and
26
(d)
meet all applicable requirements of law, including, but not limited to, 28
U.S.C. § 1715, Fed. R. Civ. P. 23(c) and (e) and the Due Process Clause(s)
of the United States Constitution.
(e)
The Court further finds that all of the notices are written in simple
terminology, are readily understandable by Class Members, and comply
with the Federal Judicial Center's illustrative class action notices.
(13)
At least ten (10) days prior to the Fairness Hearing, after mailing, Class Counsel
and Defendant’s Counsel shall file with the Court a notice of mailing the Revised
Notice to the Class Members.
(14)
No later than forty-five (45) days before the date of the Fairness Hearing, any
member of the Settlement Classes who desires to be excluded from the Settlement
Classes must file a written request for exclusion with the Court and mail the written
request for exclusion addressed to Class Counsel and LVNV’s Counsel as follows:
Class Counsel:
James H. Lawson, Esq.
Lawson at Law, PLLC
115 S. Sherrin Ave., Suite 5
Louisville, KY 40207
James R. McKenzie, Esq.
James R. McKenzie Attorney, PLLC
115 S. Sherrin Ave., Suite 5
Louisville, KY 40207
LVNV’s Counsel:
Gregory S. Berman
Jordan M. White
WYATT, TARRANT & COMBS, LLP
500 West Jefferson Street, Suite 2800
Louisville, Kentucky 40202-2898
The request for exclusion must include the Class Member’s full name, current
27
address, telephone number, the name and caption of this Action, the last four digits
of his or her Social Security number, his or her signature, together with a statement
to the effect that he or she wishes to be excluded from or opt out of the Classes. All
such persons who timely and properly mail requests for exclusion from the
Settlement Classes shall not be a Class Member and shall have no rights with
respect to the Settlement and no interest in the settlement proceeds.
(15)
Class Counsel shall file with the Court and serve a copy upon LVNV’s Counsel of
all timely and valid requests for exclusion or a list identifying those who submitted
timely and valid requests for exclusion no later than thirty-five (35) days before
the Fairness Hearing.
(16)
All proceedings in this Action are stayed, other than proceedings relating to the
approval of the class action settlement. Class Members who do not timely and
validly exclude themselves from the Revised Settlement Agreement are enjoined
from prosecuting any non-filed or pending individual or class claims asserting any
claim(s) encompassed by the claims described in the Revised Settlement
Agreement.
(17)
Any Class Member who timely and properly elects to exclude themselves from this
Settlement may proceed with his or her own action.
(18)
Any Class Member or counsel hired at any Class Member's own expense who
complies with the requirements of this paragraph may object to any aspect of the
proposed settlement.
(a)
Any Class Member who has not filed a timely written request for exclusion
and who wishes to object to the fairness, reasonableness, or adequacy of the
28
Revised Settlement Agreement, the award of Attorneys’ Fees and Expenses,
or the individual awards to Plaintiff, must deliver to the Class Counsel
identified in the Class Notice and to LVNV’s Counsel, and file with the
Court, no later than twenty (20) days before the date scheduled for the
Fairness Hearing, or as the Court otherwise may direct:
(i)
the Class Member’s full name, address, telephone number, and the
last four digits of his or her Social Security number;
(ii)
a written statement of objections, as well as the specific reason(s), if
any, for each objection, including any legal and factual support the
Class Member wishes to bring to the Court’s attention;
(iii)
any evidence or other information the Class Member wishes to
introduce in support of the objections, including the names,
addresses, and phone numbers of all witnesses whom the Class
Member or the Class Member’s attorney intends to call at the
Fairness Hearing; and
(iv)
a statement of whether the Class Member intends to appear and
argue at the Fairness Hearing.
Class Members may do so either on their own or through an attorney retained at
their own expense. Any Class Member filing an objection may be required to sit
for deposition regarding matters concerning the objection.
b.
Any Class Member who files and serves a written objection, as described
above, may appear at the Fairness Hearing, either in person or through
personal counsel hired at the Class Member’s expense, to object to the
29
fairness, reasonableness, or adequacy of the Revised Settlement Agreement
or the proposed settlement, or to the award of Attorneys’ Fees and Expenses
or awards to the individual Plaintiffs. Class Members or their attorneys who
intend to make an appearance at the Fairness Hearing must deliver a notice
of intention to appear to Class Counsel and to LVNV’s Counsel, and file
said notice with the Court, no later than twenty (20) days before the date
scheduled for the Fairness Hearing, or as the Court may otherwise direct.
Any Class Member who fails to comply with the provisions in this section shall
waive and forfeit any and all rights he or she may have to appear separately and/or
to object, and shall be bound by all the terms of the Revised Settlement Agreement,
this Order, and by all proceedings, orders, and judgments, including, but not limited
to, the Release in the Revised Settlement Agreement in the Action.
(19)
Class Counsel and LVNV shall promptly furnish to each other copies of any and
all objections or written requests for exclusion that might come into their
possession.
(20)
Class Counsel and LVNV are authorized to use and disclose such information as is
contemplated and necessary to effectuate the terms and conditions of this
Settlement, and to protect the confidentiality of the names and addresses of Class
Members or other confidential or proprietary information pursuant to the terms of
the Revised Settlement Agreement.
(21)
This Order shall become null and void and shall be without prejudice to the rights
of the parties, all of whom shall be restored to their respective positions existing
immediately before this Court entered this Order, if:
30
(a)
the settlement is not finally approved by the Court, or does not become final,
pursuant to the terms of the Revised Settlement Agreement;
(b)
the settlement is terminated in accordance with the Revised Settlement
Agreement; or
(c)
the settlement does not become effective as required by the terms of the
Revised Settlement Agreement for any other reason.
In such event, the settlement and Revised Settlement Agreement shall become null
and void and be of no further force and effect, and neither the Revised Settlement
Agreement nor the Court’s orders, including this Order, relating to the settlement
shall be used or referred to for any purpose whatsoever.
(22)
This Order shall be of no force or effect if the settlement does not become final and
shall not be construed or used as an admission, concession, or declaration by or
against LVNV of any fault, wrongdoing, breach, or liability. Nor shall this Order
be construed or used as an admission, concession, or declaration by or against
Plaintiff Mr. Elliott or the other Class Members that their claims lack merit or that
the relief requested is inappropriate, improper, or unavailable, or as a waiver by any
party of any defenses or claims he, she, or it may have in this Action or in any other
lawsuit.
(23)
This Court shall maintain continuing jurisdiction over these settlement proceedings
to assure the effectuation thereof for the benefit of the Class.
(24)
Computation of Time. When any period of time set by this Order ends on a date
certain and that date certain falls upon a Saturday, Sunday or legal holiday, the
period of time continues to run until the end of the next day that is not a Saturday,
31
Sunday or legal holiday.
(24)
In sum, the dates for performance are as follows:
September 23, 2019
Defendants provide the Class List to
Class Counsel:
30 days from the entry of the Court’s
preliminary approval order.
Class Notice Mailing Initiated By:
Oct. 7, 2019
45 days from entry of the Court’s preliminary
approval order.
Class Notice Mailing Completed By:
Oct. 30, 2019
Not later than ninety (90) days before the
Fairness Hearing.
Deadline for Filing and Serving
Requests for Exclusion:
December 16, 2019
Not later than forty-five (45) days before the
Fairness Hearing.
Deadline for the filing of Motion for
Final Approval and other papers in
support of Settlement:
December 24, 2019
Not later than thirty-five (35) days before
the Fairness Hearing.
Deadline for Filing and Serving Objections:
January 8, 2019
Not later than twenty (20) days before the
Fairness Hearing.
32
The Fairness Hearing Shall Be Held on:
January 28, 2020
August 23, 2019
Cc:
Counsel of record
33
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