Lindsay Transmission v. Office Depot, Inc.

Filing 100

FINAL ORDER & JUDGMENT. Signed by District Judge Carol E. Jackson on 6/23/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LINDSAY TRANSMISSION, LLC,
individually and on behalf of all others
similarly situated,

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Plaintiff,
v.
OFFICE DEPOT, INC.,
Defendant.

Case No. 4:12-CV-221-CEJ

FINAL ORDER AND JUDGMENT

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On this 23rd day of June, 2014, a hearing having been held before this Court to determine:
(1) whether this action should be finally certified as a class action for settlement purposes
pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of the Settlement Class as
defined in this Court's Order of Preliminary Approval of Proposed Class Action Settlement and
Notice signed on December 10, 2013 (the "Preliminary Approval Order"); (2) whether the terms
and conditions of the Settlement Agreement, dated as of November 25, 2013 (the "Agreement"),
including the releases therein, are fair, reasonable, and adequate for the settlement of all claims
asserted by the Settlement Class against Defendant Office Depot, Inc. ("Defendant") in the
lawsuit now pending in this Court under the above caption (the "Lawsuit"), and should be
approved; (3) whether judgment should be entered dismissing the Lawsuit with prejudice in
favor of Defendant as against all persons or entities who are members of the Settlement Class
certified in the Preliminary Approval Order and who have not requested exclusion from the
Settlement Class; and (4) whether and in what amount to award an incentive award, attorneys'
fees and reimbursement of costs and expenses to Class Counsel;

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And the parties having entered into the Agreement only after engaging in discovery
procedures, motion practice, and arms-length negotiations; and the Court, having considered all
evidence and matters submitted to it at the hearing and otherwise; and it appearing that a notice
of the settlement and hearing substantially in the form approved by the Court was delivered
pursuant to the specifications of the Court; and the Court having considered and determined the
fairness and reasonableness of the award of an incentive award, attorneys' fees, costs, and
expenses requested; and the Court having jurisdiction of the subject matter of this case and the
parties to this case; and all capitalized terms used herein having the meanings as set forth and
defined in the Agreement,
IT IS HEREBY ORDERED THAT:

1.

This Court has jurisdiction over the parties, the members of the Settlement Class,

and the claims asserted in this Lawsuit.
2.

For the purposes of settlement only, the Court finds that this action satisfies the

applicable prerequisites for class action treatment under Rule 23(e) of the Federal Rules of Civil
Procedure: namely, (a) the class is so numerous that joinder of all members is impracticable; (b)
there are questions of fact or law common to the class; (c) the claims of the Class Representative
are typical of the Settlement Class; (d) the Class Representative and Class Counsel have fairly
and adequately protected the interests of the class; (e) the questions of law or fact common to the
members of the class predominate over any questions affecting only individual members; and (f)
class action treatment is superior to other available methods for the fair and efficient adjudication
of the controversy. Nothing herein shall be construed as an adjudication on the merits of the
certifiability of a litigation class against Defendant for any purpose, including for the purpose of
asserting claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et. seq.,

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("TCP A") or otherwise based upon the transmission of facsimiles to any person, except for the
sole purpose of the settlement of the Lawsuit as provided and approved herein. The Court finds
that the settlement of this action, as embodied in the terms of the Settlement Agreement, is
hereby finally approved as a fair, reasonable, and adequate settlement of this case in the best
interests of the Settlement Class in light of the factual, legal, practical, and procedural
considerations raised by this case.
3.

This action is hereby finally certified as a class action for settlement purposes

only, on behalf of a Settlement Class defined as follows:
All persons or entities owning a facsimile number that was published in the 20112013 Warrensburg Chamber of Commerce Membership Directory, which
therefore may have been sent one or more facsimile advertisements, that was or
were in substantially the same form as Exhibits 1, 2, and/or 3 hereto, from the
Office Depot Store #2142, located in Warrensburg, Missouri, between February 1,
2011 and August 31, 2011.
Excluded from the Settlement Class are Office Depot, Inc. ("Office Depot"), including any
parent, subsidiary, affiliate or controlled person of Office Depot, as well as its officers, directors,
agents, servants or employees of Office Depot and the immediate family members of such
persons.
4.

The Court finds that the Settlement Agreement has been entered into in good faith

following arm's-length negotiations.
5.

The Agreement attached hereto as Exhibit "A" and all terms thereof are approved

as fair, reasonable, and adequate, and in the best interests of the Settlement Class, and the
Agreement and its terms are expressly incorporated herein and made part of this Final Order and
Judgment.

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6.

Upon the Declaration of Jennifer M. Keough, the Court finds that the notice was

given to Class Members, and finds that such notice was the best notice practicable under the
circumstances and satisfies the requirements of due process and Rule 23(e (1).
7.

Upon the Declaration of Jennifer M. Keough, the Court finds that notice has been

given to the appropriate State and Federal officials in accordance with the Class Action Fairness
Act, 28 U.S.C. § 1715.
8.

A total of 0 objections were received and 0 parties appeared in Court at the

fairness hearing to object to the settlement. All objections are overruled.
9.

No persons have excluded themselves from the Settlement Class.

10.

After due consideration of the uncertainty about the likelihood of the Settlement

Class's ultimate success on the merits; the range of the Settlement Class's possible recovery; the
complexity, expense and duration of the litigation; the substance and amount of opposition to the
settlement; and the state of proceedings at which the settlement was achieved; all written
submissions, affidavits, and arguments of counsel; and after notice and hearing, this Court finds
that the settlement is fair, adequate, and reasonable. This Court also finds that the financial
settlement terms fall within the range of settlement terms that would be considered fair,
adequate, and reasonable. Accordingly, this Settlement Agreement should be and is approved
and shall govern all issues regarding the settlement and all rights of the Parties, including the
class members. Each class member (except those who have previously excluded themselves from
the Settlement Class by submitting a Notice to Class Counsel indicating that they are opting out
and are listed in Paragraph 9 above) shall be bound by the Settlement Agreement, including
being subject to the Releases set forth in that Settlement Agreement.

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11.

Office Depot has created a settlement fund (the "Settlement Fund") of THREE

HUNDRED EIGHTY-ONE THOUSAND ONE HUNDRED FIFTY DOLLARS ($381,150.00)
to pay all Cash Settlement Payments to qualifying Settlement Class members, to pay Class
Counsel's fees and out-of-pocket expenses, to pay the Class Representative's incentive award,
and to pay any Administration Costs. Unclaimed monies in the Settlement Fund shall revert to
Office Depot.
12.

As agreed in the Settlement Agreement, each member of the Settlement Class

who submits a timely and approved, completed Claim Form attesting to receipt of one or more
facsimile advertisements from Office Depot during the Class Period that was or were in
substantially the same form as Exhibits 1, 2, and/or 3 (attached to the Settlement Agreement)
shall receive a Cash Settlement Payment from the Settlement Fund in the amount of $450.00.
Each member of the Settlement Class who submits a timely and approved, completed Claim
Form attesting to receipt of one or more facsimile advertisements from Office Depot during the
Class Period that was or were in substantially the same form as Exhibits 1, 2, and/or 3 (attached
to the Settlement Agreement) and submits a true and correct copy of the facsimile
transmission(s) received with the Claim Form shall receive a Cash Settlement Payment from the
Settlement Fund in the amount of $550.00 for each distinct facsimile transmission image
submitted with the approved Claim Form (up to three). Checks issued to the claiming Class
members will be void one hundred eighty-one (181) days after issuance and any amount from
void checks shall be refunded to Office Depot.
13.

The Class Representative, each and every Settlement Class Member, and the

heirs, administrators, executors, successors, assigns, affiliates, parents, subsidiaries, owners,
directors, officers, members, managers, employees, agents, and/or representatives of any of them

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(the "Releasing Parties"), are permanently barred and enjoined from instituting or prosecuting,
either directly or in any other capacity, any and all "Released Claims" (as defined in paragraph
14 herein) against any and all "Released Parties" (as defined in paragraph 15 herein). Pursuant
to the Release contained in the Settlement Agreement, the Released Claims are hereby declared
compromised, settled, released, discharged, and dismissed with prejudice by virtue of these
proceedings and this Final Order and Judgment.
14.

As used in this Final Order and Judgment, the term "Released Claims" means any

and all claims or causes of action of any nature whatsoever, arising out of, based upon or in any
way relating to the transmittal of (either directly or through another), any requests to transmit,
any attempt to transmit (either directly or through another), and/or the receipt of, any facsimile
transmission containing a copy of an image(s) that was or were in substantially the same form as
those attached to the Settlement Agreement as Exhibit 1, 2 and/or 3 whether in generic form (as
to addressee) or containing the address, fax or contact information of any particular person,
entity, recipient, or intended recipient, on or between the dates of February 1, 2011 and August
31, 2011, including but not limited to any and all claims for violations of federal, state, or other
law (whether in contract, tort, or otherwise, including statutory, common law, property, and
equitable claims, including but not limited to, the TCPA or any similar or related federal or state
statute or regulation), and also including "Unknown Claims" (as defined in Section II.14.c of the
Agreement), that have been or could have been asserted against the Released Parties by the
Releasing Parties in this action or in any other complaint, action, or litigation in any other court
or forum, and also including claims arising out of or related to the notice of this settlement.
15.

As used in this Final Order and Judgment, the term "Released Parties" means

Defendant Office Depot, Inc., along with its past or present directors, officers, employees,

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partners, principals, agents, underwriters, issuers, insurers, co-insurers, reinsurers, controlling
shareholders, attorneys, any entities in which Office Depot has or has had a controlling interest
or that have controlled Office Depot at any time, accountants, auditors, banks or investment
bankers, personal or legal representatives, predecessors, successors, parents, subsidiaries,
affiliates, licensees, divisions, joint ventures, joint venturers, assigns, associates, and/or any other
related or affiliated entities.
16.

The Court finds that the amount of $125,779.50 for Class Counsel's attorney's

fees is fair and reasonable and that the amount of $28,000.00 for Class Counsel's out-of-pocket
expenses is fair and reasonable. The awarded fees are equal to 33% of the Settlement Fund and
are supported by the prevailing market rate for attorneys' fees in TCPA class actions. In
accordance with the Settlement Agreement, these amounts shall be paid to Class Counsel from
the corpus of the Settlement Fund as set forth in the Settlement Agreement.
17.

Pursuant to the parties' agreement, the Court awards the amount of $5,500 as an

incentive award to Plaintiff, Lindsay Transmission, LLC, for serving as the Class Representative,
and finds the amount fair and reasonable. In accordance with the Settlement Agreement, this
amount shall be paid to Lindsay Transmission from the corpus of the Settlement Fund as set
forth in the Settlement Agreement.
18.

The Court adopts and incorporates all of the terms of the Settlement Agreement

by reference here. The Parties to the Settlement Agreement shall carry out their respective
obligations under that Agreement.
19.

If (a) the Settlement Agreement is terminated pursuant to its terms, or (b) the

Settlement Agreement or this Order do not for any reason become effective, or (c) the Settlement
Agreement or this Order is reversed, vacated, or modified in any material or substantive respect,

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then any and all orders entered pursuant to the Settlement Agreement shall be deemed vacated.
If the settlement does not become final in accordance with the terms of the Settlement

Agreement, this Order shall be void and shall be deemed vacated.
20.

For ninety (90) days after entry of this Order, the Court retains continuing

jurisdiction over this action, Lindsay Transmission and all members of the Settlement Class, and
Office Depot to determine all matters relating in any way to this Final Judgment and Order, the
Preliminary Approval Order, or the Settlement Agreement, including, but not limited to, their
administration, implementation, interpretation, or enforcement. The Court retains jurisdiction to
enforce this Order.
21.

The Court finds that there is no just reason to delay the enforcement of or appeal

from this Order.
22.

The Lawsuit, including all claims against Office Depot asserted in this Lawsuit, or

which could have been asserted in this Lawsuit, by or on behalf of Plaintiff and all Class
Members against Office Depot, is hereby dismissed with prejudice. Except as provided in the
Agreement and in paragraph 16 herein, each Party shall pay its own costs. Any and all other
relief not expressly granted herein is denied. This is intended to be, and is, a final judgment and
disposes of all Parties and controversies in this action.

SIGNEDthis

2...?At/dayof~~~~~-----'2014.

HO!c~~
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