Breda v. Cellco Partnership et al

Filing 241

Judge Denise J. Casper: ORDER entered. ORDER CONDITIONALLY CERTIFYING SETTLEMENT CLASS, PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT, AND APPROVING NOTICE PLAN. (Currie, Haley)

Case 1:16-cv-11512-DJC Document 241 Filed 11/18/21 Page 1 of 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ROBIN BREDA, on behalf of herself and
all others similarly situated,
Plaintiff,

Civil Action No. 1:16-cv-11512-DJC

v.
CELLCO PARTNERSHIP d/b/a
VERIZON WIRELESS,
Defendant.
ORDER CONDITIONALLY CERTIFYING SETTLEMENT CLASS, PRELIMINARILY
APPROVING CLASS ACTION SETTLEMENT, AND APPROVING NOTICE PLAN
This matter came before the Court on Plaintiff’s Motion for Preliminary Approval of the
proposed class action settlement (the “Settlement”). This case was brought by Plaintiff Robin
Breda (“Breda” or “Plaintiff”), individually and on behalf of all others similarly situated, against
Defendant Cellco Partnership d/b/a Verizon Wireless (“Defendant” or “Verizon”) (together, with
Plaintiff, “Parties”). Based on this Court’s review of the Settlement Agreement (“Agreement”),
Plaintiff’s Motion for Preliminary Approval of Settlement, and the arguments of counsel, the
Court HEREBY FINDS AND ORDERS AS FOLLOWS:
1.

Settlement Terms. Unless otherwise defined herein, all terms in this Order shall

have the meanings ascribed to them in the Agreement.
2.

Jurisdiction. The Court has federal question jurisdiction over the case pursuant

to the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”).
3.

Preliminary Approval of Proposed Agreement. The Court has conducted a

preliminary evaluation of the Settlement as set forth in the Agreement. Based on this preliminary
evaluation, the Court finds that: (a) the Agreement is fair, reasonable and adequate, and within

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the range of possible approval; (b) the Agreement has been negotiated in good faith at arm’s
length between experienced attorneys familiar with the legal and factual issues of this case, and
supervised by private mediator, Hesha Abrams, Esq., of Hesha Abrams Mediation, LLC; and (c)
the proposed forms and method of distributing notice of the Settlement to the Settlement Class
are appropriate and warranted. Therefore, the Court grants preliminary approval of the
Settlement.
4.

Class Certification for Settlement Purposes Only. The Court, pursuant to Rule

23 of the Federal Rules of Civil Procedure, and for purposes of this Settlement only,
conditionally certifies the following Settlement Class:
The (1) 61,485 persons in the United States (2) whose cellular telephone number
(3) was listed as a “can be reached” number on a Verizon account and (4)
received a prerecorded collection call from Defendant (5) during which the person
answering the call pressed a key or keys indicating that Defendant was calling the
wrong number, and which (6) thereafter received at least one additional
prerecorded collection call from Defendant on the same telephone number and
concerning the same Defendant account (7) within four years of the filing of the
complaint in this action.
Excluded from the Settlement Class are any judges to whom the Action was
assigned and any member of the Court’s staff and immediate family (to the extent
they received a listed call) and all persons who opt-out of or are otherwise
excluded from the Settlement Class pursuant to the requirements set forth in
Section 11 of the Settlement Agreement.
5.

In connection with granting class certification, the Court makes the following

preliminary findings:
(a)

The Settlement Class includes persons associated with 61,485 unique

cellular telephone numbers above, and thus the class is so numerous joinder of all
members is impracticable;
(b)

There appear to be questions of law or fact common to the Settlement

Class for purposes of determining whether the Settlement should be approved, including,

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but not limited to, whether Verizon made prerecorded voice calls to the Settlement Class
members, and whether those calls violated the TCPA, and for the purposes of the
Settlement only, these questions appear to predominate over any alleged individual
questions;
(c)

Plaintiff’s claims appear to be typical of the claims of the Settlement Class

because she alleges Defendant called her cellular telephone number using prerecorded
voice messages without prior express consent;
(d)

Plaintiff and her counsel are adequate to represent the class. Plaintiff

appears to have the same interests as the Settlement Class, he does not have any apparent
conflict of interest with the Settlement Class, and her attorneys have extensive experience
litigating class action cases, including class actions under the TCPA;
(e)

Certification of the Settlement Class is the superior method for fairly and

efficiently resolving the claims of the Settlement Class;and
(f)

The form of Class Notice and notice program constitutes the best notice

practicable under the circumstances, provides due and sufficient notice to the Settlement Class
and fully satisfies the requirements of due process and Federal Rule of Civil Procedure 23 and
due process.
6.

Class Representative. The Court appoints Plaintiff Breda as representative of the

Settlement Class pursuant to Rule 23 of the Federal Rules of Civil Procedure.
7.

Class Counsel. The Court appoints Keogh Law, Ltd. and Lemberg Law LLC as

Class Counsel pursuant to Rule 23 of the Federal Rules of Civil Procedure.
8.

Settlement Claims Administrator. Epiq is hereby appointed as the Settlement

Administrator. The Settlement Administrator shall be responsible for providing notice of the

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Settlement (“Notice”) to the Settlement Class as provided in the Agreement and this Order, as
well as services related to administration of the Settlement.
9.

Class Notice. The Settlement Administrator shall, by the Notice Deadline,

provide:
i.

Mail Notice and E-Mail. The Settlement Administrator will provide individual
notice via postcard to every address returned after reverse lookup. If an address is
not available, or if the address available is not a valid address or returned as
undeliverable, individual notice will be sent via e-mail if available. The
Settlement Administrator shall perform skip tracing for all returned direct mail;
all costs of skip tracing will be considered Settlement Costs and paid from the
Settlement Fund. The E-Mail and Website Notice will be provided in English and
Spanish. The Mail Notice will be provided in English with a statement in Spanish
directing Spanish-speaking Class Members to the Settlement Website for the
Website Notice.

ii.

Settlement Website. The Settlement Administrator will establish and maintain
the Settlement Website dedicated to the Settlement, on which will be posted the
Website Notice, a copy of this Agreement, the Preliminary Approval Order, the
operative Complaint, the attorneys’ fees and service payment applications and any
other materials the Parties agree to include. These documents shall be available
on the Settlement Website beginning 5 calendar days after the entry of the
Preliminary Approval Order or when filed. They shall remain until all of
Settlement Awards checks disbursed are void unless otherwise ordered by the
Court. The Settlement Website will also allow Settlement Class Members to
update their contact information and submit claims.
The Settlement
Administrator shall secure the URL www.bredatcpasettlement.com for the
Settlement Website.

iii.

800 Number/IVR/Telephone Claims. The Settlement Administrator will
establish and maintain an 800 number that will answer questions concerning this
Agreement and allow Settlement Class Members to request a written claim form
or use their Claim ID, which will be the unique identifier for each Settlement
Class member that is provided on the Mail or E-mail Notice (“Claim ID”) to make
a claim via telephone.

iv.

CAFA Notice. The Settlement Administrator shall, at Defendant’s expense,
serve CAFA Notice as required by 28 U.S.C. § 1715 to the Attorney General of
the United States and the appropriate state officials within 10 calendar days of the
filing of the Preliminary Approval Motion.

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All costs of the notice program shall be deducted from the Settlement Fund. Further specific
details of the notice program shall be subject to the agreement of the Parties and approval of the
Court.
10.

Claims, Opt-Outs, and Objections. Persons in the Settlement Class who wish to

submit a claim to receive the Settlement’s benefits, or object to the Settlement, or request
exclusion from the Settlement Class, must do so in accordance with the Notice and Claim
Form. A class member who opts out may not also submit a valid Claim Form or objection,
unless the class member confirms their intent to withdraw their opt-out in writing by the date
set below for the opt-out deadline.
11.

Settlement Administrator to Maintain Records. The Settlement Administrator

shall maintain copies of all claims, objections, and opt-outs received. The Settlement
Administrator shall provide copies of all objections and opt-outs to the parties.
12.

Objections to the Settlement. Any Settlement Class Member who wishes to be

heard orally at the Final Approval Hearing, or who wishes for any objection to be considered,
must file a written notice of objection with the Clerk of Court, in accordance with the Notice,
Settlment Agreement, and this Order. To be considered, the Settlement Class Member’s
objection must: (i) attach documents establishing, or provide information sufficient to allow the
Parties to confirm, that the objector is a member of the Settlement Class, including providing
the Claim ID, full name, address, the telephone number Defendant called which caused the
person to be in the Settlement Class, and whether he or she intends to appear at the Final
Approval Hearing on his or her own behalf or through counsel; (ii) include a statement of such
person’s specific objections; and (iii) state the grounds for the objection and attach any
documents supporting the objection.

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13.

Appearing at Final Approval Hearing. Any Settlement Class Member who

objects may, but does need to, appear at the Final Approval Hearing, either in person or
through an attorney hired at such person’s own expense, to object to the fairness,
reasonableness, or adequacy of this Agreement or the Settlement. A person in the Settlement
Class or his or her attorney intending to make an appearance at the Final Approval Hearing
must: (i) file a notice of appearance with the Court no later than 20 calendar days prior to the
Final Approval Hearing, or as the Court may otherwise direct; and (ii) serve a copy of such
notice of appearance on all counsel for all Parties.
14.

Reasonable Procedures to Effectuate the Settlement. Unless otherwise ordered

by the Court, the Parties are authorized to use all reasonable procedures in connection with
approval and administration of the Settlement that are not materially inconsistent with this
Order or the Agreement, including making minor changes to the form or content of the Notice
or exhibits to the Agreement they agree are reasonable and necessary.
15.

Final Approval Hearing. At the date and time provided below, or at such other

date and time later the Court sets, this Court will hold a Final Approval Hearing on the
fairness, adequacy and reasonableness of the Agreement and to determine whether (a) final
approval of the Settlement embodied by the Agreement should be granted, and (b) Class
Counsel’s application for an award of attorneys’ fees and expenses, and any service award to
Plaintiff, should be granted, and in what amounts. The hearing shall be held in Courtroom 11,
5th Floor, at the John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Suite 2300,
Boston, Massachusetts 02210, or such other location as the Court may order. The Court may
also order the hearing to take place remotely via Zoom or such other remote communication
system as the Court may direct.

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16.

Plaintiff shall file her motion in support of Class Counsel’s application for

attorneys’ fees and expenses, and any service award, no later than the Notice Deadline below.
17.

Plaintiff shall file her: (a) motion in support of final approval of the Settlement;

(b) response to any objections to the Settlement, no later than the date stated for the same in the
Schedule of Events below.
18.

Schedule of Events. Based on the foregoing, the Court hereby orders the

resolution of this matter shall proceed on the following schedule:

January 6, 2022

Deadline for the Settlement Administrator to send notice to the
Settlement Class in accordance with the Agreement and this
Order (Notice Deadline)

January 6 2022

Deadline for Plaintiff to file his Motion for Attorneys’ Fees and
Expenses, and any Incentive Award

March 7, 2022

Deadline for any member of the Settlement Class to submit a
Claim Form, request exclusion from the Settlement, or object to
the Settlement in accordance with the Notice and this Order
(Claim, Opt-Out, and Objection Deadline)

March 28, 2022

Deadline for Plaintiff to file:

April 28, 2022 at 2 p.m.

(1) Motion and memorandum in support of final approval,
including proof of class notice; and
(2) Response to any objections.
Final Approval Hearing

19.

The Court, pending determination of whether the Settlement should be finally

approved, bars and enjoins all persons in the Settlement Class, individually, and on a
representative basis or other capacity, from commencing or prosecuting against the Released
Parties in any action, arbitration, or proceeding in any court, arbitration forum or tribunal
asserting any of the Released Claims unless they timely opt-out.
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20.

The Court, pending final determination of whether the Settlement should be

approved, stays all proceedings as set forth herein except those related to effectuating the
Settlement.

IT IS SO ORDERED.
November 18, 2021
Dated:________________________

__________________________________________
Honorable Denise J. Casper
United States District Judge

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