Wittman et al v. CB1, Inc.
FINAL APPROVAL ORDER- Read order for details Signed by Judge Brian Morris on 5/24/2017. (AMC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
WILLIAM WITTMAN and AMBER
BELLAMY, for themselves and all
others similarly situated,
FINAL APPROVAL ORDER
WHEREAS, on December 20, 2016, the Court entered an Amended
Preliminary Approval Order preliminarily approving the proposed Settlement
pursuant to the terms of the Parties’ Settlement Agreement and directing that
notice be given to the Settlement Class (Doc. 70);
WHEREAS, pursuant to the notice requirements set forth in the Settlement
Agreement and in the Preliminary Approval Order, the Settlement Class was
notified of the terms of the proposed Settlement, of the right of members of the
Settlement Class to opt-out, and of the right of members of the Settlement Class to
be heard at a Final Approval Hearing to determine, inter alia: (1) whether the
terms and conditions of the Settlement Agreement are fair, reasonable and
adequate for the release of the claims contemplated by the Settlement Agreement;
and (2) whether judgment should be entered dismissing this action entitled
Wittman v. CBI, Inc., United States District Court, District of Montana, Billings
Division, Case No. 1:15-cv-00105-BMM (the “Action”) with prejudice;
WHEREAS, a Final Approval Hearing was held on May 24, 2017. Prior to
the Final Approval Hearing, Plaintiffs supplied the Court with evidence that the
Class Administrator complied with the provisions of the Settlement Agreement and
Preliminary Approval Order relating to notice. Class Members were therefore
notified of their right to appear at the Final Approval Hearing in support of, or in
opposition to, the proposed Settlement, the award of Attorney’s Fees and Costs to
Class Counsel, and the payment of the Incentive Award.
NOW, THEREFORE, the Court, having heard the presentation of Class
Counsel and counsel for Defendant CB1, Inc. (“CB1”), having reviewed all of the
submissions presented with respect to the proposed Settlement, having determined
that the Settlement is fair, adequate and reasonable, having considered the
Attorney’s Fees and Cost application made by Class Counsel and the application
for an Incentive Award to the Settlement Class Representative, and having
reviewed the materials in support thereof, and good cause appearing:
THIS COURT FINDS AND ORDERS AS FOLLOWS:
The capitalized terms used in this Final Approval Order and Judgment
shall have the same meaning as defined in the Settlement Agreement except as
may otherwise be ordered.
The Court has jurisdiction over the subject matter of this Action and
over all claims raised therein and all Parties thereto, including the Settlement
The Court hereby approves the Settlement, including the plans for
implementation and distribution of the settlement relief, and finds that the
Settlement is, in all respects, fair, reasonable and adequate to the Class Members,
within the authority of the parties and the result of extensive arm’s-length
negotiations. The Parties shall effectuate the Settlement Agreement in accordance
with its terms. The Settlement Agreement and every term and provision thereof
shall be deemed incorporated herein as if explicitly set forth and shall have the full
force of an Order of this Court.
There are no objections and three opt outs to the Settlement.
The Settlement Class, which will be bound by this Final Approval
Order and Judgment, shall include all members of the Settlement Class who did
not submit timely and valid requests to be excluded from the Settlement Class.
For purposes of the Settlement and this Final Approval Order and
Judgment, the Court hereby certifies the following Settlement Class:
All persons who, during the period October 22, 2013, to the
date of preliminary approval, paid a surcharge for credit or
debit card use in making a payment to CB1.
The Court has been informed that there are approximately 11,709 members of the
The Court finds that the plan for Notice, set forth in the Settlement
Agreement and effectuated pursuant to the Preliminary Approval Order, was the
best notice practicable under the circumstances; provided due and sufficient notice
to the Settlement Class of the pendency of the Action, certification of the
Settlement Class for settlement purposes only, the existence and terms of the
Settlement Agreement, and the Final Approval Hearing; and satisfied the
requirements of the Federal Rules of Civil Procedure, the United States
Constitution, and other applicable law.
The Settlement Agreement is, in all respects, fair, reasonable and
adequate, and is in the best interests of the Settlement Class. The Settlement
Agreement is therefore approved.
All persons who have not made their objections to the Settlement in
the manner provided in the Settlement Agreement are deemed to have waived any
objections by appeal, collateral attack, or otherwise.
Within the time period set forth in the Settlement Agreement, the cash
distributions provided for in the Settlement Agreement shall be paid to the various
Settlement Class members pursuant to the terms and conditions of the Settlement
Upon the Effective Date, members of the Settlement Class who did
not validly and timely opt-out shall, by operation of this Final Approval Order and
Judgment, have fully, finally, and forever released, relinquished, and discharged
CB1 and the Released Parties from all claims that were or could have been asserted
in the Action, as specified in the Settlement Agreement.
All members of the Settlement Class who did not validly and timely
opt-out are hereby permanently barred and enjoined from filing, commencing,
prosecuting, maintaining, intervening in, participating in, conducting or continuing,
either directly or in any other capacity, any action or proceeding in any court,
agency, arbitration, tribunal, or jurisdiction, asserting any claims released pursuant
to the Settlement Agreement, or seeking an award of fees and costs of any kind or
nature whatsoever and pursuant to any authority or theory whatsoever, relating to
or arising from the Action and/or as a result of, or in addition to, those provided by
the Settlement Agreement.
The terms of the Settlement Agreement and this Final Approval Order
and Judgment shall have maximum res judicata, collateral estoppel, and all other
preclusive effect in any and all claims for relief, causes of action, suits, petitions,
demands in law or equity, or any allegations of liability, damages, debts, contracts,
agreements, obligations, promises, attorney’s fees, costs, interest or expenses
which were or could have been asserted in the Action or are in any way related to
the receipt of a letter regarding the payment of a surcharge on a debt or credit card
payment, or CB1 's receipt of a surcharge on a debit or credit card payment, as set
forth in the Settlement Agreement.
The Class Administrator shall be paid its incurred expenses from the
Class Counsel requested an award of reasonable Attorney’s Fees and
Costs in the amount of $215,262.19. The Court hereby grants Class Counsel an
award of reasonable Attorney’s Fees and Costs in the amount of $215,262.19.
Class Counsel applied for an Incentive Award for Plaintiffs in the
amount of $5,000.00 each. The Court further grants Class Counsel’s application
for an Incentive Award for Plaintiffs in the amount of $5,000.00 each. These
amounts are to be paid out of the Settlement Fund, in accordance with the
The above-captioned Action is hereby dismissed in its entirety with
prejudice. Except as otherwise provided in this Final Approval Order and
Judgment, the parties shall bear their own costs and attorney’s fees. Without
affecting the finality of the Judgment hereby entered, the Court reserves
jurisdiction over the implementation of the Settlement, including enforcement and
administration of the Settlement Agreement.
The Court hereby approves the distribution of the remaining value
from the Settlement Fund to Family Service, Inc.
DATED this 24th day of May, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?