Reynolds v. ARL Credit Services, Inc. et al

Filing 33

ORDER- The Findings and Recommendation (Filing No. 32 ) issued by Magistrate Judge F.A. Gossett are adopted in their entirety. Plaintiff's Unopposed Motion for Certification of Settlement Class and Preliminary Approval of Settlement and Notic e to Class 29 is granted. The agreements, terms, and conditions of the parties Proposed Settlement, as embodied in the Agreement and the Exhibits attached hereto, are preliminarily approved pending a final hearing on the Proposed Settlement as p rovided herein. For purposes of the Proposed Settlement only, the Court hereby certifies plaintiffs class, pursuant to Fed. R. Civ. P. 23(b)(3), as set forth within the order. Having reviewed the proposed Notice of Proposed Class Action Settlement a ttached as Exhibit B to the Agreement, the Court hereby approves such Notice and directs that Defendants cause the Notice to be delivered to Class Members by First Class Mail, based on address information gathered from business records of Defenda nts, and subsequent search of each name and address in the National Change of Address database. Any Class Member who desires to request exclusion from the Settlement Class, must submit a written Statement of Exclusion in the manner required by the Notice of Settlement and mailed to the ARL Class Settlement Administrator at the address by the deadline set forth in the class notice. A hearing will be held before the undersigned on January 26, 2016, at 1:30 P.M. in Courtroom No. 2 of the Rom an Hruska United States Courthouse, 111 South 18th Plaza, Omaha, Nebraska (Final Settlement Hearing), to determine: (a) whether the Proposed Settlement set forth in the Agreement should be approved as fair, reasonable, adequate, and in the best in terests of the Settlement Classes; (b) whether a final judgment should be entered dismissing the claims of Plaintiff and the Class Members with prejudice and on the merits, as required by the Agreement; (c) and (c) whether to approve the cy pres a ward requested by the parties. The Final Settlement Hearing is subject to continuation or adjournment by the Court without further notice. Application for an award of attorney's fees, costs, and expenses to Plaintiff's Counsel ("Fee P etition") shall be filed with the Court no later than thirty (30) days after entry of the Final Approval Order. The parties are ordered to take all reasonable steps necessary to complete this settlement. Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH REYNOLDS, on behalf of
himself and all others similarly situated;
8:15CV25
Plaintiff,
vs.

ORDER

ARL CREDIT SERVICES, INC.,
DONETTE JABLONSKI, AND RICHARD
JABLONSKI,
Defendants.

This matter came on before the Court on the Unopposed Motion (Filing No. 29)
for Certification of Settlement Class and for Preliminary Approval of Settlement
(“Proposed Settlement”). The terms of the parties’ agreement are set forth in a
Settlement Agreement dated September 10, 2015 (the “Agreement”) (Filing No. 31-1).
All capitalized terms in this Order shall have the meanings given them in the
Agreement. Also before the Court are the Findings and Recommendation (Filing No. 32)
issued by Magistrate Judge F.A. Gossett, recommending that the Unopposed Motion be
granted, and the Proposed Order (Filing No. 31-2) be approved.

The Court has

reviewed the Agreement, its exhibits, and other submissions of the parties, and has
considered the entire record in this case. The Court concludes that the Findings and
Recommendation should be adopted, and the Motion should be granted. Accordingly,
under Federal Rule of Civil Procedure 23(e):
IT IS ORDERED:
1.

The Findings and Recommendation (Filing No. 32) issued by Magistrate

Judge F.A. Gossett are adopted in their entirety.

2.

Plaintiff’s Unopposed Motion for Certification of Settlement Class and

Preliminary Approval of Settlement and Notice to Class (Filing No. 29) is granted.
3.

The agreements, terms, and conditions of the parties’ Proposed

Settlement, as embodied in the Agreement and the Exhibits attached hereto, are
preliminarily approved pending a final hearing on the Proposed Settlement as provided
herein.
4.

For purposes of the Proposed Settlement only, the Court hereby certifies

plaintiff’s class, pursuant to Fed. R. Civ. P. 23(b)(3), as follows:
All Nebraska residents who were sent a letter in the form of Exhibit A to
the Complaint, by Defendants, in attempt to collect a debt incurred for
personal, family or household purposes, during the period January 15,
2014 through the date of preliminary approval of class certification.
The foregoing is the “Settlement Class,” and its members are “Class Members.”
In support of this Order, the Court finds as follows:
The parties do not dispute, and the Court finds, consistent with the Magistrate
Judge’s conclusion, that there are a sufficient number of Class Members to satisfy the
numerosity requirement of Federal Rule of Civil Procedure 23(a)(1).
There are questions of law and fact common to all Class Members. Such
questions include, but are not necessarily limited to, the following:
Whether letters sent in the form of Exhibit A to the Complaint (Filing No. 1-1)
violated the Fair Debt Collection Practices Act and Nebraska Consumer
Protection Act.
Plaintiff’s claims are typical of the claims of the members of the Settlement
Classes. Plaintiff is a member of the Settlement Class and alleges that the same
conduct of Defendants applies to him as well as the other members of the Settlement

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Class. Plaintiff’s claims are not in conflict with, or antagonistic to, the claims of the
Settlement Classes as a whole. The claims of Plaintiff and other members of the
Settlement Class are based upon corresponding theories.
Plaintiff, as Class Representative, and Class Counsel can fairly and adequately
represent the interest of the Settlement Class.
Questions of law and fact common to all members of the Settlement Class
predominate over any questions affecting only individual members for settlement
purposes. A class for settlement purposes is superior to other available methods for the
fair and efficient adjudication of this controversy.
5.

If for any reason the Agreement ultimately does not become effective,

Defendants’ conditional withdrawal of its objections to the certification of a settlement
class shall be null and void in its entirety; this Order certifying a class shall be vacated;
the parties shall return to their respective positions in this lawsuit as those positions
existed immediately before the date of the Settlement Agreement, and nothing stated in
the Agreement and in this Order shall be deemed an admission or waiver of any kind by
any of the parties or used as evidence against, or over the objection of, any of the
parties for any purpose in this action or in any other action or proceeding of any kind.
6.

Having reviewed the proposed Notice of Proposed Class Action

Settlement attached as Exhibit B to the Agreement, the Court hereby approves such
Notice and directs that Defendants cause the Notice to be delivered to Class Members
by First Class Mail, based on address information gathered from business records of
Defendants, and subsequent search of each name and address in the National Change
of Address database.
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7.

The Court finds and determines that notice by First Class Mail given to

Class Members in accordance with paragraph 6 of this Order constitutes the best notice
practicable under the circumstances taking into account the nature of the claims and
facts presented; that it constitutes due and sufficient notice of the Proposed Settlement
and the matters set forth in said notice to all persons entitled to receive notice; and that
it fully satisfies the requirements of due process and of Fed. R. Civ. P. 23. The court
approves First Class, Inc., of Chicago, Ill as class administrator herein.
8.

Any Class Member who desires to request exclusion from the Settlement

Class, must submit a written Statement of Exclusion in the manner required by the
Notice of Settlement and mailed to the ARL Class Settlement Administrator at the
address by the deadline set forth in the class notice. Statements of Exclusion must be
addressed to the ARL Class Settlement Administrator at the following address:
ARL Settlement Class Administrator
c/o First Class, Inc.
5410 W Roosevelt Rd, Ste 222
Chicago, IL 60644-1490
9.

A hearing will be held before the undersigned on January 26, 2016, at

1:30 P.M. in Courtroom No. 2 of the Roman Hruska United States Courthouse, 111
South 18th Plaza, Omaha, Nebraska (“Final Settlement Hearing”), to determine: (a)
whether the Proposed Settlement set forth in the Agreement should be approved as fair,
reasonable, adequate, and in the best interests of the Settlement Classes; (b) whether a
final judgment should be entered dismissing the claims of Plaintiff and the Class
Members with prejudice and on the merits, as required by the Agreement; (c) and (c)

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whether to approve the cy pres award requested by the parties. The Final Settlement
Hearing is subject to continuation or adjournment by the Court without further notice.
10.

Application for an award of attorney’s fees, costs, and expenses to

Plaintiff’s Counsel (“Fee Petition”) shall be filed with the Court no later than thirty (30)
days after entry of the Final Approval Order.
11.

Within 45 days of the entry of this Order, Defendants shall cause a

declaration to be filed with the Court certifying that notice has been mailed by regular
United States mail to the Settlement Class, as directed in this Order.
12.

Any Class Member who wishes to object to the Proposed Settlement, or to

appear at the Final Settlement Hearing and show cause, if any, why the same should
not be approved as fair, reasonable, adequate, and in the best interests of the
Settlement Classes, or why a final judgment should not be entered thereon, must serve
and file written objections in the form and manner required by the Notice of Settlement.
Such written objections must be filed with the Court no later than the deadline set forth
in the Notice of Settlement; must contain the objector’s full name, telephone number,
and current address; must declare that the objector is a member of the Class; and must
provide a detailed statement of the objector’s specific objections to any matter before
the Court and the grounds therefore. Copies of all materials also must be filed with the
Clerk of Court and served upon counsel on or before the deadline set forth in the Notice
of Settlement, at the following addresses:
Clerk of Court
Roman L. Hruska Federal Courthouse
111 South 18th Plaza
Suite 1152
Omaha, NE 68102
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Pursuant to NECivR 23.1 (b), all notices to class members specifically state “that all
documents sent to the court by any class member, including any letter or document
expressing the member’s desire to be excluded from the class and any objection to a
proposed settlement, voluntary dismissal, or compromise, are filed electronically by the
clerk and therefore will be available for public review.”
13.

No person shall be entitled to object to the Proposed Settlement, to the

final judgment to be entered in the Action, to any award of a Class Representative fee
or of attorneys’ fees, costs, expenses, and disbursements to Plaintiff’s Counsel, or
otherwise to be heard, except by serving and filing a written notice of intention to appear
and written objections in the form and manner, and by the date required herein and by
the Notice of Settlement. Any person who fails to object in the manner and by the date
required shall be deemed to have waived any objections, and shall be forever barred
from raising such objections in this or any other action or proceeding.
14.

Pursuant to Rule 23(c)(2)(B)(iv) any Class Member may enter an

appearance through an attorney if the member so desires. From the date of entry of this
Order until the Court holds the Final Settlement Hearing and determines the matters set
forth in paragraph 9 of this Order, all Class Members (except those who have served a
timely Statement of Exclusion) shall be barred from asserting against the Released
Parties any claims for which a Release and Covenant Not to Sue will be given,
consistent with paragraph 8 of the Agreement, if the Court approves the Proposed
Settlement.
15.

Upon the entry of final judgment after the Final Settlement Hearing,

Plaintiff and all Class Members (except those who have served a timely Statement of
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Exclusion) shall be forever barred from asserting against Released Parties any claims
that are being released in accordance with paragraph 8 of the Agreement, and Plaintiff
and all Class Members shall be conclusively deemed to have released any and all such
claims.
16.

Following the entry of final judgment after the Final Settlement Hearing,

and upon the date that the settlement becomes Final and Effective within the meaning
of those terms in the Agreement, which will occur after the date upon which the
judgment in this action becomes not subject to further appeal or review, only Class
Members who have not requested exclusion shall be entitled to a Settlement Payment
as described in paragraph 5 of the Agreement.
17.

The parties entered into the Agreement solely for the purpose of

compromising and settling disputed claims. Defendants have at all times denied, and
continue to deny, any allegation of wrongful act or omission alleged by Plaintiff in this
Action and any liability of any sort to Plaintiff or any member of the Settlement Class.
Nothing contained in the Agreement, in any document relating to the Agreement, or in
this Order shall be construed, deemed or offered as an admission by Plaintiff or
Defendants, or by any member of the Settlement Class, for any purpose in any judicial
or administrative action or proceeding, whether in law or in equity.
18.

The parties are ordered to take all reasonable steps necessary to

complete this settlement.
19.

The Court reserves the right to adjourn or continue the Final Settlement

Hearing, and any adjournment or continuance may be without further notice of any kind

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other than oral announcement at the Final Settlement Hearing or at any hearing
thereafter.

Dated this 20th day of October, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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